(a) any loss of or serious damage to property occurs in the course of, or as a direct result of, a controlled operation (other than property of the law enforcement agency on behalf of which the operation is conducted or a participant in the operation); or
(b) any personal injury occurs in the course of, or as a direct result of, such an operation;
the principal law enforcement officer for the controlled operation must report the loss, damage or injury to the chief officer of the law enforcement agency as soon as practicable.
(2) If loss or serious damage to property is reported to the chief officer under subsection (1), the chief officer must take all reasonable steps to notify the owner of the property of the loss or damage.
(3) If a personal injury is reported to the chief officer under subsection (1), the chief officer must take all reasonable steps to notify the person that the injury occurred in the course of, or as a direct result of, the controlled operation.
(4) The chief officer is not required to give a notification under subsection (2) or (3) until the chief officer is satisfied that the notification would not:
(a) compromise or hinder the controlled operation or any related investigation; or
(b) compromise the identity of a participant in the controlled operation; or
(c) endanger the life or safety of any person; or
(d) prejudice any legal proceeding; or
(e) otherwise be contrary to the public interest.
(5) A chief officer may, by written instrument, delegate any of the chief officer’s powers or functions under this section to:
(a) in relation to the Australian Federal Police—a Deputy Commissioner or a person of equivalent or higher rank; or
(b) in relation to the Immigration and Border Protection Department—a person who holds or performs the duties of an SES Band 3 position, or an equivalent or higher position, in that Department; or
(c) in relation to the ACC:
(i) an Executive Director or a person occupying an equivalent or higher position; or
(ii) a person occupying a position prescribed by the regulations; or
(d) in relation to the National Anti‑Corruption Commission—a National Anti‑Corruption Deputy Commissioner (within the meaning of the National Anti‑Corruption Commission Act 2022); or
(e) in relation to the police force of a State or Territory—a Deputy Commissioner or a person of equivalent or higher rank.
Subdivision B—Controlled operations under a corresponding State controlled operations law
15HH Protection from criminal responsibility for conduct under a corresponding State controlled operations law
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(1) This section applies to a participant in an operation authorised under a corresponding State controlled operations law if:
(a) the participant engages in conduct in the course of, and for the purposes of, the operation; and
(b) engaging in that conduct is a Commonwealth offence.
(2) Despite any other law of the Commonwealth, the participant is not criminally responsible for the Commonwealth offence, if:
(a) the conduct is authorised by, and is engaged in in accordance with, the authority to conduct the controlled operation; and
(b) the conduct does not involve the participant intentionally inducing a person 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
(c) the conduct does not involve the participant engaging in any conduct that is likely to:
(i) cause the death of, or serious injury to, any person; or
(ii) involve the commission of a sexual offence against any person; and
(d) if the person is a civilian participant in the operation—he or she acts in accordance with the instructions of a law enforcement officer.
(3) Expressions used in this section have the same meanings as in the corresponding State controlled operations law under which the operation was authorised.
15HI Effect of section 15HH on other laws relating to criminal investigation
Section 15HH does not apply to a person’s conduct that is, or could have been, authorised under a Commonwealth law or a law of a State or Territory relating to the following:
(a) arrest or detention of individuals;
(b) searches of individuals;
(c) entry onto, or searches or inspection of, premises;
(d) searches, inspections or seizures of other property;
(e) forensic procedure;
(f) electronic surveillance devices or telecommunications interception;
(g) identification procedures;
(h) the acquisition or use of assumed identities;
(i) any other matter concerning powers of criminal investigation.
15HJ Protection from criminal responsibility for certain ancillary conduct
(1) This section applies if:
(a) a person engages in conduct (the ancillary conduct) that relates to conduct (the related conduct) that:
(i) was engaged in by another person; and
(ii) constitutes an offence for which a person would, but for section 15HH, be criminally responsible; and
(b) engaging in the ancillary conduct is an ancillary offence (within the meaning of the Criminal Code) in relation to the offence constituted by the related conduct.
(2) Despite any law of the Commonwealth, the person who engaged in the ancillary conduct is not criminally responsible for the ancillary offence if, at the time the person engaged in the ancillary conduct, he or she believed the related conduct was being engaged in, or would be engaged in, by a participant in an operation authorised under a corresponding State controlled operations law.
(3) Expressions used in this section have the same meanings as in the corresponding State controlled operations law under which the person believed the controlled conduct was being engaged in.
Division 4—Compliance and monitoring
15HK Unauthorised disclosure of information
Disclosures by entrusted persons
(1) A person commits an offence if:
(a) the person is, or has been, an entrusted person; and
(b) information came to the knowledge or into the possession of the person in the person’s capacity as an entrusted person; and
(c) the person discloses the information; and
(d) the information relates to a controlled operation.
Note: Recklessness is the fault element for paragraphs (1)(b) and (d)—see section 5.6 of the Criminal Code.
Penalty: Imprisonment for 2 years.
(1A) Strict liability applies to paragraph (1)(a).
Note: For strict liability, see section 6.1 of the Criminal Code.
(1B) A person commits an offence if:
(a) the person is, or has been, an entrusted person; and
(b) information came to the knowledge or into the possession of the person in the person’s capacity as an entrusted person; and
(c) the person discloses the information; and
(d) the information relates to a controlled operation; and
(e) either or both of the following subparagraphs apply:
(i) the person intends to endanger the health or safety of any person or prejudice the effective conduct of a controlled operation;
(ii) the disclosure will endanger the health or safety of any person or prejudice the effective conduct of a controlled operation.
Note: Recklessness is the fault element for paragraphs (1B)(b) and (d) and subparagraph (1B)(e)(ii)—see section 5.6 of the Criminal Code.
Penalty: Imprisonment for 10 years.
(1C) Strict liability applies to paragraph (1B)(a).
Note: For strict liability, see section 6.1 of the Criminal Code.
Other disclosures
(1D) A person commits an offence if:
(a) the person discloses information; and
(b) the information relates to a controlled operation; and
(c) the disclosure will endanger the health or safety of any person or prejudice the effective conduct of a controlled operation.
Note: Recklessness is the fault element for paragraphs (1D)(b) and (c)—see section 5.6 of the Criminal Code.
Penalty: Imprisonment for 2 years.
(1E) A person commits an offence if:
(a) the person discloses information; and
(b) the information relates to a controlled operation; and
(c) either or both of the following subparagraphs apply:
(i) the person intends to endanger the health or safety of any person or prejudice the effective conduct of a controlled operation;
(ii) the person knows that the disclosure will endanger the health or safety of any person or prejudice the effective conduct of a controlled operation.
Note: Recklessness is the fault element for paragraph (1E)(b)—see section 5.6 of the Criminal Code.
Penalty: Imprisonment for 10 years.
Exceptions—general
(2) Subsections (1) to (1E) do not apply if the disclosure was:
(a) in connection with the administration or execution of this Part; or
(b) for the purposes of any legal proceedings arising out of or otherwise related to this Part or of any report of any such proceedings; or
(c) for the purposes of obtaining legal advice in relation to the controlled operation; or
(d) in accordance with any requirement imposed by law; or
(e) in connection with the performance of functions or duties, or the exercise of powers, of a law enforcement agency.
Note: A defendant bears an evidential burden in relation to the matters in this subsection—see subsection 13.3(3) of the Criminal Code.
(2A) Subsections (1) to (1E) do not apply, in the case of a controlled operation authorised by an integrity testing controlled operation authority (granted on the basis that an integrity testing authority is in effect), if the disclosure was:
(a) in any of the circumstances mentioned in paragraphs (2)(a) to (e); or
(b) in connection with the administration or execution of Part IABA, or the National Anti‑Corruption Commission Act 2022, in relation to the integrity testing authority; or
(c) for the purposes of any disciplinary or legal action in relation to a staff member of a target agency, if arising out of, or otherwise related to, the controlled operation; or
(d) in relation to the integrity testing authority:
(i) for the purposes of any disciplinary or legal action in relation to a staff member of a target agency, if arising out of, or otherwise related to, an integrity testing operation authorised by the authority; or
(ii) to an authority of the Commonwealth, a State or a Territory, if the disclosure relates to the misconduct of an employee or officer of the authority.
Note: A defendant bears an evidential burden in relation to the matters in this subsection—see subsection 13.3(3) of the Criminal Code.
Exception—misconduct
(3) Subsections (1) to (1E) do not apply if:
(a) the person (the discloser) discloses the information to the Ombudsman, the National Anti‑Corruption Commissioner or the Inspector of the National Anti‑Corruption Commission; and
(b) the discloser informs the person to whom the disclosure is made of the discloser’s identity before making the disclosure; and
(c) the information concerns:
(i) a corruption issue (within the meaning of the National Anti‑Corruption Commission Act 2022) or a NACC corruption issue (within the meaning of that Act) in relation to a controlled operation; or
(ii) misconduct in relation to a controlled operation; and
(d) the discloser considers that the information may assist a person referred to in paragraph (a) to perform the person’s functions or duties; and
(e) the discloser makes the disclosure in good faith.
Note: A defendant bears an evidential burden in relation to the matters in this subsection—see subsection 13.3(3) of the Criminal Code.
Exception—previously published information
(4) Subsections (1D) and (1E) do not apply to a person disclosing information if:
(a) the information has already been communicated, or made available, to the public (the prior publication); and
(b) the person was not involved in the prior publication (whether directly or indirectly); and
(c) at the time of the disclosure, the person believes that the disclosure:
(i) will not endanger the health or safety of any person; and
(ii) will not prejudice the effective conduct of a controlled operation; and
(d) having regard to the nature, extent and place of the prior publication, the person has reasonable grounds for that belief.
Note: A defendant bears an evidential burden in relation to the matters in subsection (4)—see subsection 13.3(3) of the Criminal Code.
15HM Chief officers’ 6 monthly reports to Ombudsman and Minister
(1) As soon as practicable after 30 June and 31 December in each year, the chief officer of each authorising agency must submit a report to the Ombudsman setting out the details required by subsection (2) in relation to controlled operations for which the agency was the authorising agency during the previous 6 months.
(2) The report must include the following details:
(a) the number of formal authorities that were granted or varied by an authorising officer of the agency during the period to which the report relates;
(b) the number of formal applications for the grant of formal authorities that were refused by an authorising officer of the agency during the period to which the report relates, the date of those applications and the date of the refusals;
(c) the number of formal variation applications and urgent variation applications for the variation of formal authorities that were refused by an authorising officer of the agency during the period to which the report relates, the date of those applications and the date of the refusals;
(d) the number of urgent authorities that were granted or varied by an authorising officer of the agency during the period to which the report relates;
(e) the number of formal applications and urgent applications for the granting of urgent authorities that were refused by an authorising officer of the agency during the period to which the report relates, the date of those applications and the date of the refusals;
(f) the number of formal variation applications and urgent variation applications for the variation of urgent authorities that were refused by an authorising officer of the agency during the period to which the report relates, the date of those applications and the date of the refusals;
(g) the number of formal authorities that were varied by a nominated Tribunal member during the period to which the report relates;
(h) the number of formal variation applications and urgent variation applications for the variation of formal authorities that were refused by a nominated Tribunal member during the period to which the report relates, the date of those applications and the date of the refusals;
(i) for each authority that was in force at any time during the period to which the report relates:
(i) the date the controlled operation commenced; and
(ii) if the controlled operation ceased during that period—the date of cessation and the outcomes of the controlled operation; and
(iii) if subparagraph (ii) does not apply—the last day of the period of effect of the authority (including any extensions);
(j) for each authority that was varied by an authorising officer of the agency during the period to which the report relates—the date of the application for the variation and the date of the variation;
(k) for each authority in relation to which an application for variation was refused by an authorising officer of the agency during the period to which the report relates—the date of the application and the date of the refusal;
(l) for each authority that was varied by a nominated Tribunal member during the period to which the report relates—the date of the application for the variation and the date of the variation;
(m) for each authority in relation to which an application for variation was refused by a nominated Tribunal member during the period to which the report relates—the date of the application and the date of the refusal;
(n) the nature of the criminal activities against which the controlled operations were directed;
(o) the identity of each person targeted under controlled operations;
(p) the nature of the controlled conduct engaged in for the purposes of the controlled operations;
(q) if any of the controlled operations involved illicit goods, a statement (to the extent known) of:
(i) the nature and quantity of the illicit goods; and
(ii) the route through which the illicit goods passed in the course of the operations; and
(iii) all foreign countries through which the illicit goods passed in the course of the operation;
(r) details of any loss of or serious damage to property (other than property of the law enforcement agency on behalf of which the operation is conducted or a participant in the operation) occurring in the course of or as a direct result of the controlled operations;
(s) details of any personal injuries occurring in the course of or as a direct result of the operations;
(t) the number of authorities for controlled operations that were cancelled by an authorising officer of the agency or that expired during the period to which the report relates.
(2A) If the controlled operation involved illicit goods that are narcotic goods, the report is to:
(a) identify each law enforcement agency an officer of which had possession of the narcotic goods in the course of the controlled operation; and
(b) identify to the extent known any other person who had possession of the narcotic goods in the course of the controlled operation; and
(c) state whether the narcotic goods have been destroyed; and
(d) if the narcotic goods have not been destroyed—contain the information specified in subsection (2B) relating to the possession of the narcotic goods, or state that it is not known who has possession of them.
(2B) If the controlled operation involved narcotic goods that have not been destroyed, and the identity of the person who has possession of the narcotic goods is known, the report is to:
(a) if the person is a law enforcement officer—identify the law enforcement agency of which the person is an officer; or