(a) the authorised civilian acquires evidence of, or uses, an assumed identity; and
(b) the acquisition or use is not in accordance with both:
(i) an authority; and
(ii) the directions of the authorised civilian’s supervisor under the authority; and
(c) the authorised civilian is reckless as to the circumstance mentioned in paragraph (b).
Penalty: Imprisonment for 2 years.
15LC Disclosing information about assumed identity
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct causes the disclosure of information; and
(c) the information reveals, or is likely to reveal, that another person has acquired, will acquire, is using or has used an assumed identity.
Penalty: Imprisonment for 2 years.
(2) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct causes the disclosure of information; and
(c) the information reveals, or is likely to reveal, that another person has acquired, will acquire, is using or has used an assumed identity; and
(d) the person is reckless as to whether his or her conduct will endanger the health or safety of any person.
Penalty: Imprisonment for 10 years.
(3) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct causes the disclosure of information; and
(c) the information reveals, or is likely to reveal, that another person has acquired, will acquire, is using or has used an assumed identity; and
(d) the person is reckless as to whether his or her conduct will prejudice the effective conduct of an investigation or intelligence‑gathering in relation to criminal activity.
Penalty: Imprisonment for 10 years.
(4) A person does not commit an offence under subsection (1), (2) or (3) if the person causes the disclosure of information mentioned in paragraph (1)(c), (2)(c) or (3)(c) (as the case may be) and the disclosure is:
(a) in connection with the administration or execution of this Part or a corresponding assumed identity law; or
(b) for the purposes of any legal proceeding arising out of or otherwise related to this Part or a corresponding assumed identity law or of any report of any such proceedings; or
(c) made by the Commonwealth Director of Public Prosecutions for the purposes of a legal proceeding; or
(d) in accordance with the exercise of powers or performance of functions of a law enforcement agency or an intelligence agency; or
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(da) in connection with the exercise of a power, or the performance of a function or duty, of the Inspector of the National Anti‑Corruption Commission or a person assisting the NACC Inspector; or
(db) for the purpose of an IGIS official exercising a power, or performing a function or duty, as an IGIS official; or
(e) in accordance with any requirement imposed by law.
Note 1: A defendant bears an evidential burden in relation to the matters in subsection (4)—see subsection 13.3(3) of the Criminal Code.
Note 2: The mere existence of an exception under subsection (4) does not mean that a person might not commit an offence under a provision of another Act (such as under Division 1 of Part 6 of the Intelligence Services Act 2001) if the person causes the disclosure of information mentioned in paragraph (1)(c), (2)(c) or (3)(c).
Subdivision B—Reporting and record‑keeping
15LD Reports about authorities for assumed identities etc.—law enforcement agencies
(1) As soon as practicable after the end of each financial year, the chief officer of a law enforcement agency must submit a report to the Minister administering the National Anti‑Corruption Commission Act 2022 (the NACC Minister) that includes the following information for the year:
(a) the number of authorities granted during the year;
(b) a general description of the activities undertaken by authorised civilians and authorised law enforcement officers when using assumed identities under this Part during the year;
(c) the number of applications for authorities that were refused during the year;
(d) the number of authorities of which control was transferred by the chief officer under section 15KV during the year;
(e) the number of authorities of which control was transferred to the chief officer under section 15KV during the year;
(f) a statement whether or not any fraud or other unlawful activity was identified by an audit under section 15LG during the year;
(g) any other information relating to authorities and assumed identities and the administration of this Part that the NACC Minister considers appropriate.
(2) The chief officer must advise the NACC Minister of any information in the report that, in the chief officer’s opinion, should be excluded from the report before the report is laid before the Parliament because the information, if made public, could reasonably be expected to:
(a) endanger a person’s safety; or
(b) prejudice an investigation or prosecution; or
(c) compromise any law enforcement agency’s operational activities or methodologies.
(3) The NACC Minister must exclude information from the report if satisfied on the advice of the chief officer of any of the grounds set out in subsection (2) and must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the NACC Minister receives the report.
15LE Reports about authorities for assumed identities etc.—intelligence agencies
As soon as practicable after the end of each financial year, the chief officer of an intelligence agency must submit a report to the Inspector‑General of Intelligence and Security (the Inspector‑General) that includes the following information for the year:
(a) the number of authorities granted during the year;
(b) a general description of the activities undertaken by authorised civilians and authorised intelligence officers when using assumed identities under this Part during the year;
(c) the number of applications for authorities that were refused during the year;
(d) the number of authorities of which control was transferred by the chief officer under section 15KV during the year;
(e) the number of authorities of which control was transferred to the chief officer under section 15KV during the year;
(f) a statement whether or not any fraud or other unlawful activity was identified by an audit under section 15LG during the year;
(g) any other information relating to authorities and assumed identities and the administration of this Part that the Inspector‑General considers appropriate.
15LF Record keeping
(1) The chief officer of either a law enforcement agency or an intelligence agency must keep appropriate records about the operation of this Part in respect of the agency.
(2) The records must include the following, in respect of authorities granted, varied or cancelled under this Part in respect of the agency:
(a) the date on which an authority was granted, varied or cancelled and the name of the person who granted, varied or cancelled it;
(b) the name of the authorised person under the authority, together with details of the assumed identity to which the authority applies;
(c) details of any request made to an issuing agency under section 15KI or 15KX (request for evidence of assumed identity) in respect of the authority;
(d) the general nature of the duties undertaken by the authorised person under the assumed identity;
(e) general details of relevant financial transactions entered into using the assumed identity;
(f) details of reviews of the authority under section 15KF (yearly review of authority).
(3) The records must include the following in respect of authorities the control of which has been transferred to or from the chief officer of the agency under section 15KV:
(a) the names of the chief officers of the originating agency and the receiving agency in relation to the transfer;
(b) the name of the originating agency and the receiving agency in relation to the transfer;
(c) the date of the transfer;
(d) if control of the authority had previously been transferred under section 15KV:
(i) the date of each such transfer; and
(ii) the name of the originating agency and receiving agency in relation to each such transfer.
15LG Audit of records
(1) The chief officer of either a law enforcement agency or an intelligence agency must cause the records kept under section 15LF for each authority in respect of the agency to be audited:
(a) at least once every 6 months while the authority is in force; and
(b) at least once in the 6 months after the cancellation or expiry of the authority.
(2) The audit is to be conducted by a person appointed by the chief officer.
(3) The person appointed to conduct the audit:
(a) may, but need not be, an officer of the agency; and
(b) must not be a person:
(i) who granted, varied or cancelled any of the authorities to which the records under section 15LF relate; or
(ii) to whom control of any of the authorities to which the records under section 15LF relate was transferred; or
(iii) who is or was an authorised person under any of the authorities to which those records relate.
(4) The results of an audit must be reported to the chief officer.
Division 7—General
15LH Delegation of chief officer’s functions
(1) Except as provided by this section (and despite any other Act or law to the contrary) the functions of a chief officer under this Part may not be delegated to any other person.
(2) A chief officer may delegate to a senior officer of the law enforcement agency or the intelligence agency (as the case may be) any of the chief officer’s functions under this Part relating to the granting, variation, cancellation and transfer of control of authorities (including, but not limited to conducting reviews under section 15KF, making applications under section 15KG, giving directions under section 15KL and making requests under section 15KI or 15KX).
(3) In this section:
senior officer means:
(a) in relation to the Australian Federal Police:
(i) any senior executive AFP employee of the Australian Federal Police within the meaning of section 25 of the Australian Federal Police Act 1979; or
(ii) any Deputy Commissioner of Police within the meaning of section 6 of the Australian Federal Police Act 1979; or
(iii) a person occupying a position in the Australian Federal Police that is equivalent to or higher than the positions mentioned in subparagraphs (i) and (ii); and
(b) in relation to the Immigration and Border Protection Department—any SES employee in that Department; and
(c) in relation to the ACC—any SES employee who is a member of the staff of the ACC within the meaning of section 47 of the Australian Crime Commission Act 2002, or a person occupying an equivalent or higher position in the ACC; and
(d) in relation to the National Anti‑Corruption Commission:
(i) a National Anti‑Corruption Deputy Commissioner; or
(ii) another staff member of the NACC who is an SES employee, or a person occupying an equivalent or higher position, and who is authorised in writing by the National Anti‑Corruption Commissioner for the purposes of this provision; and
(e) in relation to the Australian Taxation Office—any Deputy Commissioner as defined in section 2 of the Taxation Administration Act 1953, or a person occupying an equivalent or higher position in the Australian Taxation Office; and
(f) in relation to the Australian Security Intelligence Organisation—any senior position‑holder within the meaning of the Australian Security Intelligence Organisation Act 1979; and
(g) in relation to the Australian Secret Intelligence Service (ASIS)—an intelligence officer who holds, or is acting in, a position in ASIS that is equivalent to, or higher than, a position occupied by an SES employee; and
(ga) in relation to the Office of National Intelligence—an SES employee in the Office of National Intelligence, or a person occupying an equivalent or higher position in the Office of National Intelligence; and
(gb) in relation to the Australian Signals Directorate—an intelligence officer who holds, or is acting in, a position in the Australian Signals Directorate that is equivalent to, or higher than, a position occupied by an SES employee in the Australian Signals Directorate; and
(h) in relation to a Commonwealth agency specified in the regulations for the purposes of the definition of law enforcement agency—an officer specified in the regulations to be a senior officer of the agency.
Part IACA—Witness identity protection for operatives
Division 1—Preliminary
15M Definitions
(1) In this Part:
assumed name of an operative has the meaning given by paragraph 15MG(1)(a)(i).
chief officer of a law enforcement agency means the following:
(a) in relation to the Australian Federal Police—the Commissioner of the Australian Federal Police;
(b) in relation to the Immigration and Border Protection Department—Secretary of that Department;
(c) in relation to the ACC—the Chief Executive Officer of the ACC;
(d) in relation to the National Anti‑Corruption Commission—the National Anti‑Corruption Commissioner;
(e) in relation to the Australian Taxation Office—the Commissioner of Taxation;
(f) in relation to a Commonwealth agency specified in the regulations for the purposes of the definition of law enforcement agency—the officer specified in the regulations as the chief officer of that agency.
conduct includes any act or omission.
corresponding witness identity protection certificate means a certificate given under a provision of a corresponding witness identity protection law that corresponds to section 15ME.
corresponding witness identity protection law means:
(a) a law of a State or Territory; or
(b) a provision or provisions of a law of a State or Territory;
prescribed by the regulations for the purposes of this definition.
court includes any tribunal or person authorised by law or consent of parties to receive evidence.
court name for an operative in relation to a proceeding, means a name (other than the operative’s real name) or code used to identify the operative in the proceeding.
false representation does not include a representation made under an authority under:
(a) Part IAB (about controlled operations); or
(b) Part IAC (about assumed identities).
investigation means an investigation in relation to criminal activity, including an investigation extending beyond the Commonwealth.
jurisdiction means the Commonwealth or a State or Territory of the Commonwealth.
law enforcement agency means the following:
(a) the Australian Federal Police;
(b) the Immigration and Border Protection Department;
(c) the ACC;
(d) the National Anti‑Corruption Commission;
(e) the Australian Taxation Office;
(f) any other Commonwealth agency specified in the regulations.
operative means a person who is or was:
(a) a participant in a controlled operation authorised under Part IAB; or
(b) authorised to acquire and use an assumed identity under Part IAC by the chief officer of a law enforcement agency;
but does not include a person who is or was an intelligence officer (within the meaning of Part IAC).
party to a proceeding, means:
(a) for a criminal proceeding—the prosecutor and each accused person; or
(b) for a civil proceeding—each person who is a party to the proceeding.
presiding officer in relation to a proceeding, means the person constituting the court, or presiding over the court, in the proceeding.
proceeding means any criminal, civil or other proceeding or inquiry, reference or examination in which by law or consent of parties evidence is or may be given, and includes an arbitration.
professional misconduct means fraud, negligence, default, breach of trust, breach of duty, breach of discipline or any other misconduct in the course of duty.
security has the meaning given by section 4 of the Australian Security Intelligence Organisation Act 1979.
witness identity protection certificate means a certificate given under section 15ME.
(2) For the purposes of this Part:
(a) anything permitted to be done by a party to a proceeding may be done by the party’s lawyer; and
(b) any requirement to give something to a party to a proceeding is satisfied by giving the thing to the party’s lawyer.
15MA Meaning of criminal proceeding
(1) In this Part, criminal proceeding means a proceeding for the prosecution, whether summarily or on indictment, of an offence or offences.
(2) To avoid doubt, each of the following is part of a criminal proceeding:
(a) a bail proceeding;
(b) a committal proceeding;
(c) the discovery, exchange, production, inspection or disclosure of intended evidence, documents and reports of persons intended to be called by a party to give evidence;
(d) a sentencing proceeding;
(e) an appeal proceeding;
(f) a proceeding with respect to any matter in which a person seeks a writ of mandamus or prohibition or an injunction against an officer or officers of the Commonwealth (within the meaning of subsection 39B(1B) of the Judiciary Act 1903) in relation to:
(i) a decision to prosecute a person for one or more offences against a law of the Commonwealth; or
(ii) a related criminal justice process decision (within the meaning of subsection 39B(3) of that Act);
(g) any other pre‑trial, interlocutory or post‑trial proceeding prescribed by regulations for the purposes of this paragraph.
15MB Meaning of civil proceeding
(1) In this Part, civil proceeding means any proceeding in a court of the Commonwealth, a State or Territory, other than a criminal proceeding.
(2) To avoid doubt, each of the following is part of a civil proceeding:
(a) any proceeding on an ex parte application (including an application made before pleadings are filed in a court);