Crimes (Controlled Operations) Act 2008 (ACT)

This Act creates a statutory framework for the authorisation, conduct, monitoring and mutual recognition of "controlled operations" conducted by specified law enforcement agencies on behalf of the Australian Capital Territory. A controlled operation is an operation conducted to obtain evidence for prosecution or Integrity Commission investigations that involves, or may involve, conduct that would otherwise be criminal (see dictionary, controlled operation; s 6). The Act:

Prescribes who may apply for an authority (a law enforcement officer of a law enforcement agency) and who decides applications (the agency’s chief officer), and allows both standard (written) and urgent (oral/telecommunications) forms for applications and authorities (s 9, s 11).
Sets the statutory preconditions that must be satisfied before an authority may be granted , e.g. reasonable grounds that a relevant offence has been, is being or is likely to be committed; necessity and proportionality limits on unlawful conduct; minimisation of illicit goods under non-law-enforcement control at operation end; and measures to account for controlled conduct for reporting (s 10(2)(a)-(f), (h), (i), (g)).
Limits the duration of authorities (standard authorities up to 3 months; urgent authorities up to 7 days), allows amendment and cancellation by the chief officer, and requires written records for urgent authorities and amendments (s 11(3)(i); s 12; s 13; s 14; s 15).
Creates statutory civil and criminal protections for participants in authorised operations for conduct engaged in in accordance with the authority (criminal non-responsibility s 18; civil immunity and shifting of liability to the Territory s 19). Those protections carry prescribed exceptions (no intentional inducement to commit offences that would not otherwise be committed; no conduct likely to cause death or serious injury or sexual offences; civilian participants must follow law enforcement instructions; and regulation-set requirements must be met for civil immunity) (s 18; s 19(2)(a)-(d), (e)).

Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Australian Capital Territory Crimes (Controlled Operations) Act 2008 A2008-32 Republication No 4 Effective: 17 December 2021 Republication date: 17 December 2021 Last amendment made by A2021-33

Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au About this republication The republished law This is a republication of the Crimes (Controlled Operations) Act 2008 (including any amendment made under the Legislation Act 2001, part 11.3 (Editorial changes)) as in force on 17 December 2021. It also includes any commencement, amendment, repeal or expiry affecting this republished law to 17 December 2021. The legislation history and amendment history of the republished law are set out in endnotes 3 and 4. Kinds of republications The Parliamentary Counsel’s Office prepares 2 kinds of republications of ACT laws (see the ACT legislation register at www.legislation.act.gov.au): • authorised republications to which the Legislation Act 2001 applies • unauthorised republications. The status of this republication appears on the bottom of each page. Editorial changes The Legislation Act 2001, part 11.3 authorises the Parliamentary Counsel to make editorial amendments and other changes of a formal nature when preparing a law for republication. Editorial changes do not change the effect of the law, but have effect as if they had been made by an Act commencing on the republication date (see Legislation Act 2001, s 115 and s 117). The changes are made if the Parliamentary Counsel considers they are desirable to bring the law into line, or more closely into line, with current legislative drafting practice. This republication does not include amendments made under part 11.3 (see endnote 1). Uncommenced provisions and amendments If a provision of the republished law has not commenced, the symbol U appears immediately before the provision heading. Any uncommenced amendments that affect this republished law are accessible on the ACT legislation register (www.legislation.act.gov.au). For more information, see the home page for this law on the register. Modifications If a provision of the republished law is affected by a current modification, the symbol M appears immediately before the provision heading. The text of the modifying provision appears in the endnotes. For the legal status of modifications, see the Legislation Act 2001, section 95. Penalties At the republication date, the value of a penalty unit for an offence against this law is $160 for an individual and $810 for a corporation (see Legislation Act 2001, s 133).

R4 17/12/21 Crimes (Controlled Operations) Act 2008 Effective: 17/12/21 contents 1 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Australian Capital Territory Crimes (Controlled Operations) Act 2008 Contents Page Part 1 Preliminary 1 Name of Act 2 3 Dictionary 2 4 Notes 2 5 Offences against Act—application of Criminal Code etc 2 6 Objects of Act 3 7 Relationship to other laws and matters 3 8 Controlled operation taken to be conducted in ACT 5 Part 2 Authorisation of controlled operations 9 Application for authority to conduct controlled operation 6 10 Decision on application for authority 7 11 Form of authority 8

Contents Page contents 2 Crimes (Controlled Operations) Act 2008 Effective: 17/12/21 R4 17/12/21 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 12 Duration of authority 10 13 Amendment of authority 10 14 Form of amendment of authority 13 15 Cancellation of authority 13 16 Effect of authority 14 17 Defect in authority 14 Part 3 Conduct of controlled operations Division 3.1 Controlled conduct engaged in for authorised operation 18 Protection from criminal responsibility for controlled conduct during authorised operation 15 19 Civil liability not incurred 16 20 Effect of s 18 and s 19 on other laws relating to criminal investigation 17 21 Effect of being unaware of amendment or cancellation of authority 17 22 Protection from criminal responsibility for certain ancillary conduct 18 Division 3.2 Compensation and notification of third parties 23 Compensation for property loss or serious damage 18 24 Notification requirements 19 Division 3.3 Mutual recognition 25 Mutual recognition of corresponding authority 20 Part 4 Compliance and monitoring Division 4.1 Restrictions on disclosure of information 26 Unauthorised disclosure of information 21 Division 4.2 Reporting and record-keeping 27 Principal law enforcement officers’ reports 22 28 Chief officers’ annual reports 23 29 Keeping documents connected with authorised operation 25 30 General register 26 Division 4.3 Inspections 31 Inspection of records by ombudsman 28 Part 5 Miscellaneous 32 Evidence of authorities 29

Contents Page R4 17/12/21 Crimes (Controlled Operations) Act 2008 Effective: 17/12/21 contents 3 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 33 Delegation 29 34 Regulation-making power 30 Dictionary 31 Endnotes 1 About the endnotes 35 2 Abbreviation key 35 3 Legislation history 36 4 Amendment history 37 5 Earlier republications 38

R4 17/12/21 Crimes (Controlled Operations) Act 2008 Effective: 17/12/21 page 1 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Australian Capital Territory Crimes (Controlled Operations) Act 2008 An Act to provide for the authorisation, conduct and monitoring of controlled operations

Part 1 Preliminary Section 1 page 2 Crimes (Controlled Operations) Act 2008 Effective: 17/12/21 R4 17/12/21 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Part 1 Preliminary 1 Name of Act This Act is the Crimes (Controlled Operations) Act 2008. 3 Dictionary The dictionary at the end of this Act is part of this Act. Note 1 The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere in this Act. For example, the signpost definition ‘urgent application—see section 9.’ means that the term ‘urgent application’ is defined in that section. Note 2 A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)). 4 Notes A note included in this Act is explanatory and is not part of this Act. Note See the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes. 5 Offences against Act—application of Criminal Code etc Other legislation applies in relation to offences against this Act. Note 1 Criminal Code The Criminal Code, ch 2 applies to all offences against this Act (see Code, pt 2.1). The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability). Note 2 Penalty units The Legislation Act, s 133 deals with the meaning of offence penalties that are expressed in penalty units.

Preliminary Part 1 Section 6 R4 17/12/21 Crimes (Controlled Operations) Act 2008 Effective: 17/12/21 page 3 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 6 Objects of Act The objects of this Act are— (a) to provide for the authorisation, conduct and monitoring of controlled operations, including operations conducted in the ACT, in the ACT and 1 or more other jurisdictions or in 1 or more participating jurisdictions— (i) for the purpose of obtaining evidence that may lead to the prosecution of people for particular offences; and (ii) that involve or may involve conduct for which participants in the operation would otherwise be criminally responsible; and (b) to facilitate mutual recognition of things done in relation to controlled operations authorised under laws of other jurisdictions corresponding to this Act; and (c) to ensure, as far as practicable, that appropriately trained people may act as participants in authorised operations; and (d) to ensure that a person who may act as a participant in an authorised operation engages in otherwise unlawful activities only as part of the authorised operation; and (e) to provide appropriate protection from civil and criminal liability for people acting under this Act; and (f) to clarify the status of evidence obtained by participants in authorised operations. 7 Relationship to other laws and matters (1) This Act does not affect any territory law that authorises, controls or monitors the conduct of operations wholly within the ACT— (a) that are for the purpose of obtaining evidence that may lead to the prosecution of a person for an offence; and

Part 1 Preliminary Section 7 page 4 Crimes (Controlled Operations) Act 2008 Effective: 17/12/21 R4 17/12/21 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (b) that involve, or may involve, conduct for which participants in the operation would otherwise be criminally responsible. Note Territory law includes the common law (see Legislation Act, dict, pt 1, def territory law and law, of the Territory). (2) A function conferred in relation to the activities of the Australian Crime Commission under this Act is only conferred for the purpose of the function conferred on the Australian Crime Commission under the Australian Crime Commission (ACT) Act 2003 relating to suspected serious and organised crime as defined in that Act. (3) Subject to subsection (4), this Act does not limit a discretion a court has— (a) to admit or exclude evidence in a proceeding; or (b) to stay a criminal proceeding in the interests of justice. (4) However, in deciding whether evidence should be admitted or excluded in a proceeding, the fact that the evidence was obtained as a result of a person engaging in criminal activity or corrupt conduct is to be disregarded if— (a) the person was a participant or corresponding participant acting in the course of an authorised operation or corresponding authorised operation; and (b) the criminal activity or corrupt conduct was controlled conduct within the meaning of this Act or controlled conduct within the meaning of a corresponding law. (5) The following Acts do not apply to investigations, operations, activities and records under this Act: (a) the Freedom of Information Act 2016; (b) the Territory Records Act 2002.

Preliminary Part 1 Section 8 R4 17/12/21 Crimes (Controlled Operations) Act 2008 Effective: 17/12/21 page 5 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 8 Controlled operation taken to be conducted in ACT For this Act, a controlled operation in relation to a relevant offence is taken to be conducted in the ACT, whether or not it is also conducted in another jurisdiction, if a participant in the operation is a law enforcement officer of the ACT.

Part 2 Authorisation of controlled operations Section 9 page 6 Crimes (Controlled Operations) Act 2008 Effective: 17/12/21 R4 17/12/21 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Part 2 Authorisation of controlled operations 9 Application for authority to conduct controlled operation (1) A law enforcement officer of a law enforcement agency may apply to the chief officer of the agency for an authority to conduct a controlled operation on behalf of the agency. (2) An application for an authority may be made— (a) in writing signed by the applicant (a standard application); or (b) if the applicant has reason to believe that the delay caused by making a standard application may affect the success of the operation—orally in person or by telephone, fax, email or any other means of communication (an urgent application). (3) This part does not prevent an application for an authority being made in relation to a controlled operation that has been the subject of a previous application. (4) In any application, whether standard or urgent, the applicant must— (a) provide sufficient information to enable the chief officer to decide whether or not to grant the application; and (b) state whether or not the proposed operation, or any other controlled operation in relation to the same criminal activity or corrupt conduct, has been the subject of an earlier application for an authority or amendment of an authority and, if so, whether or not the authority or amendment was granted. (5) The chief officer may require the applicant to give the chief officer the additional information the chief officer reasonably needs to decide the application. (6) As soon as practicable after making an urgent application, the applicant must make a written record of the application and give a copy of it to the chief officer.

Authorisation of controlled operations Part 2 Section 10 R4 17/12/21 Crimes (Controlled Operations) Act 2008 Effective: 17/12/21 page 7 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 10 Decision on application for authority (1) After considering an application for an authority to conduct a controlled operation, and any additional information given under section 9 (5), the chief officer may— (a) authorise the operation by granting the authority, either unconditionally or subject to conditions; or (b) refuse the application. (2) An authority to conduct a controlled operation may not be granted unless the chief officer is satisfied on reasonable grounds that— (a) a relevant offence has been, is being or is likely to be committed; and (b) the controlled operation will be, or is likely to be, conducted in the ACT, in the ACT and 1 or more other jurisdictions or in 1 or more participating jurisdictions; and (c) the nature and extent of the suspected criminal activity or corrupt conduct justify the conduct of a controlled operation in the ACT, in the ACT and 1 or more other jurisdictions or in 1 or more participating jurisdictions; and (d) any unlawful conduct involved in conducting the operation will be limited to the minimum necessary to conduct an effective controlled operation; and (e) the operation will be conducted in a way that will minimise the risk of more illicit goods being under the control of people, other than law enforcement officers, at the end of the operation than are reasonably necessary to enable the officers to achieve the purpose of the controlled operation; and (f) the proposed controlled conduct will be able to be accounted for in a way that will enable the reporting requirements of part 4 to be complied with; and

Part 2 Authorisation of controlled operations Section 11 page 8 Crimes (Controlled Operations) Act 2008 Effective: 17/12/21 R4 17/12/21 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (g) the operation will not be conducted in a way that a person is likely to be induced to— (i) commit an offence against a law of any jurisdiction or the Commonwealth that the person would not otherwise have committed; or (ii) engage in corrupt conduct; and (h) any conduct involved in the operation will not— (i) endanger the health or safety of any person; or (ii) cause the death of, or injury to, any person; or (iii) involve the commission of a sexual offence against any person; or (iv) result in unlawful loss of or serious damage to property (other than illicit goods); and (i) any role assigned to a civilian participant in the operation is not one that could be adequately performed by a law enforcement officer. 11 Form of authority (1) An authority to conduct a controlled operation may be granted— (a) in writing signed by the chief officer (a standard authority); or (b) if the chief officer is satisfied that the delay caused by granting a standard authority may affect the success of the operation— orally in person or by telephone, fax, email or any other means of communication (an urgent authority). (2) This part does not prevent an authority being granted in relation to a controlled operation that has been the subject of a previous authority.

Authorisation of controlled operations Part 2 Section 11 R4 17/12/21 Crimes (Controlled Operations) Act 2008 Effective: 17/12/21 page 9 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (3) An authority, whether standard or urgent, must— (a) state the name and rank or position of the person granting the authority; and (b) identify the principal law enforcement officer 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 is a standard application or an urgent application; and (d) identify each person who may engage in controlled conduct for the purposes of the controlled operation; and (e) state the participating jurisdictions in which the controlled conduct is, or is likely, to be engaged in; and (f) identify the nature of the criminal activity (including the suspected relevant offences) or corrupt conduct in relation to which the controlled conduct is to be engaged in; and (g) identify— (i) in relation to the law enforcement participants—the nature of the controlled conduct that the participants may engage in; and (ii) in relation to the civilian participants—the particular controlled conduct (if any) that each participant may engage in; and (h) identify (to the extent known) any suspect; and (i) state the period (not longer than 3 months for a standard authority or 7 days for an urgent authority) of validity of the authority; and (j) state any conditions to which the conduct of the operation is subject; and (k) state the date and time when the authority is granted; and

Part 2 Authorisation of controlled operations Section 12 page 10 Crimes (Controlled Operations) Act 2008 Effective: 17/12/21 R4 17/12/21 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (l) identify (to the extent known)— (i) the nature and quantity of any illicit goods that will be involved in the operation; and (ii) the route through which those goods will pass in the course of the operation. (4) A person is sufficiently identified for subsection (3) (d) 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— so long as the assumed name, code name or code number can be matched to the person’s identity. (5) The chief officer must ensure that written notes are kept of the details mentioned in subsection (3) for each urgent authority. 12 Duration of authority Unless sooner cancelled, an authority has effect for the period of validity stated in it in accordance with section 11 (3) (i). 13 Amendment of authority (1) The chief officer may amend an authority— (a) at any time on the chief officer’s own initiative; or (b) on application under subsection (3). (2) However, an amendment cannot be made that has the effect of— (a) extending the period of validity of an urgent authority; or (b) extending the period of validity of a standard authority for longer than 3 months after the date it was granted.

Authorisation of controlled operations Part 2 Section 13 R4 17/12/21 Crimes (Controlled Operations) Act 2008 Effective: 17/12/21 page 11 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (3) The principal law enforcement officer for an authorised operation, or any other law enforcement officer on behalf of the principal law enforcement officer, may apply to the chief officer for an amendment of an authority for any 1 or more of the following purposes: (a) to extend the period of validity of the authority (except as provided by subsection (2)); (b) to authorise additional or alternative people to engage in controlled conduct for the purposes of the operation; (c) to authorise participants in the operation to engage in additional or alternative controlled conduct; (d) to identify additional suspects (to the extent known). (4) More than 1 application for amendment may be made in relation to the same authority. (5) An application for amendment of an authority may be made— (a) in writing signed by the applicant (a standard amendment application); or (b) if the applicant has reason to believe that the delay caused by making a standard amendment application may affect the success of the operation—orally in person or by telephone, fax, email or any other means of communication (an urgent amendment application). (6) The chief officer may require the applicant to give the information concerning the proposed amendment that is necessary for the chief officer’s proper consideration of the application. (7) As soon as practicable after making an urgent amendment application, the applicant must make a written record of the application and give a copy of it to the chief officer.

Part 2 Authorisation of controlled operations Section 13 page 12 Crimes (Controlled Operations) Act 2008 Effective: 17/12/21 R4 17/12/21 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (8) After considering an application for amendment of an authority, and any additional information given under subsection (6), the chief officer may— (a) amend the authority in accordance with the application, either unconditionally or subject to conditions; or (b) refuse the application. (9) Section 10 (2) applies to an application for amendment of an authority under this section in the same way as it applies to an application for an authority under section 10 (1). (10) Without limiting subsection (9), an amendment of an authority may not be granted unless the chief officer is satisfied on reasonable grounds that the amendment will not authorise a significant alteration of the nature of the authorised operation concerned. (11) An amendment of an authority may be granted only— (a) in writing signed by the chief officer (a standard amendment of authority); or (b) if the chief officer is satisfied that the delay caused by granting a standard amendment of authority may affect the success of the operation—orally in person or by telephone, fax, email or any other means of communication (an urgent amendment of authority). (12) The chief officer must— (a) ensure that written notes are kept of the following matters: (i) the date and time when the amendment of authority was granted; (ii) the identity of the law enforcement officer to whom the amendment of authority was granted; (iii) particulars of the amendments of the original authority that are approved under this section; and

Authorisation of controlled operations Part 2 Section 14 R4 17/12/21 Crimes (Controlled Operations) Act 2008 Effective: 17/12/21 page 13 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (b) as soon as practicable, prepare and give to the applicant a written amendment of authority that complies with section 14. (13) The applicant must take all reasonable steps to inform participants in a controlled operation about the grant of a standard amendment of authority no later than 48 hours after the day the standard amendment of authority is granted. 14 Form of amendment of authority An amendment of an authority must— (a) identify the authorised operation for which the authority is in force; and (b) state the name, and rank or position, of the person granting the amendment; and (c) if the application for amendment is made under section 13 (3)— state the name of the applicant; and (d) state whether the application is a standard amendment application or was an urgent amendment application; and (e) state the date and time when the amendment of an authority is or was granted; and (f) describe the amendment having regard to the purposes mentioned in section 13 (3) in relation to which the application was made. 15 Cancellation of authority (1) The chief officer may, by written order given to the principal law enforcement officer for an authorised operation, cancel the authority at any time and for any reason. (2) Without limiting subsection (1), the chief officer may cancel an authority for an authorised operation at any time at the request of the principal law enforcement officer for the operation.

Part 2 Authorisation of controlled operations Section 16 page 14 Crimes (Controlled Operations) Act 2008 Effective: 17/12/21 R4 17/12/21 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (3) Cancellation of an authority for a controlled operation takes effect— (a) when the order is made; or (b) if the order states a later time of effect—at the later time. 16 Effect of authority (1) While it has effect, an authority for a controlled operation authorises— (a) each law enforcement participant to engage in the controlled conduct stated in the authority in relation to the law enforcement participants; and (b) each civilian participant (if any) to engage in the particular controlled conduct (if any) stated in the authority in relation to the participant; and (c) each participant to engage in that conduct in the ACT or any participating jurisdiction (subject to any corresponding law of that participating jurisdiction). (2) The authority to engage in controlled conduct given to a participant cannot be delegated to any other person. 17 Defect in authority An application for an authority or amendment of an authority, and any authority or amendment of an authority granted on the basis of an application, is not invalidated by any defect, other than a defect that affects the application, authority or amendment in a material particular.

Conduct of controlled operations Part 3 Controlled conduct engaged in for authorised operation Division 3.1 Section 18 R4 17/12/21 Crimes (Controlled Operations) Act 2008 Effective: 17/12/21 page 15 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Part 3 Conduct of controlled operations Division 3.1 Controlled conduct engaged in for authorised operation 18 Protection from criminal responsibility for controlled conduct during authorised operation Despite any other territory law, a participant who engages in conduct (whether in the ACT or elsewhere) in an authorised operation in the course of, and for the purposes of, the operation is not, if engaging in that conduct is an offence, criminally responsible for the offence if— (a) the conduct is authorised by, and is engaged in in accordance with, the authority for the operation; and (b) the conduct does not involve the participant intentionally inducing a person to commit an offence against a law of any jurisdiction or the Commonwealth that the person would not otherwise have committed; 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 participant is a civilian participant—the participant acts in accordance with the instructions of a law enforcement officer.

Part 3 Conduct of controlled operations Division 3.1 Controlled conduct engaged in for authorised operation Section 19 page 16 Crimes (Controlled Operations) Act 2008 Effective: 17/12/21 R4 17/12/21 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 19 Civil liability not incurred (1) This section applies if a controlled operation has been authorised by the chief officer of a law enforcement agency under section 10. (2) A participant in the authorised operation does not incur any civil liability because of conduct that the participant engages in if— (a) the participant engages in the conduct in the course of, and for the purposes of, the operation in accordance with the authority for the operation; and (b) the conduct does not involve the participant intentionally inducing a person to— (i) commit an offence under a law of any jurisdiction or the Commonwealth that the person would not otherwise have committed; or (ii) engage in corrupt conduct; 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 participant is a civilian participant—the participant acts in accordance with the instructions of a law enforcement officer; and (e) the requirements (if any) prescribed by regulation have been met. (3) Any liability that would, apart from this section, attach to the participant, attaches instead to the Territory.

Conduct of controlled operations Part 3 Controlled conduct engaged in for authorised operation Division 3.1 Section 20 R4 17/12/21 Crimes (Controlled Operations) Act 2008 Effective: 17/12/21 page 17 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 20 Effect of s 18 and s 19 on other laws relating to criminal investigation Section 18 and section 19 do not apply to a person’s conduct that is, or could have been, authorised under a territory law 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 procedures; (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. 21 Effect of being unaware of amendment or cancellation of authority (1) If an authority for a controlled operation is amended in a way that limits its scope, this part continues to apply to a participant in the operation as if the authority had not been amended in that way, for so long as the participant— (a) is unaware of the amendment; and (b) is not reckless about the existence of the amendment. (2) If an authority for a controlled operation is cancelled, this part continues to apply to a participant in the operation as if the authority had not been cancelled, for so long as the participant— (a) is unaware of the cancellation; and

Part 3 Conduct of controlled operations Division 3.2 Compensation and notification of third parties Section 22 page 18 Crimes (Controlled Operations) Act 2008 Effective: 17/12/21 R4 17/12/21 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (b) is not reckless about the existence of the cancellation. 22 Protection from criminal responsibility for certain ancillary conduct (1) This section applies to conduct (ancillary conduct) for which a person may be criminally responsible because it involves conduct engaged in by another person that is controlled conduct for which the other person would (apart from section 18) be criminally responsible (the related controlled conduct). Examples—ancillary conduct 1 aiding and abetting (see Criminal Code, s 45) 2 conspiracy (see Criminal Code, s 48) (2) Despite any other territory law, a person who engages in ancillary conduct that is an offence is not criminally responsible for the offence if at the time the person engaged in the ancillary conduct— (a) the person believed the related controlled conduct was being engaged in, or would be engaged in, by a participant in an authorised operation; and (b) the person was a participant in, or was otherwise authorised to know about, the operation. Division 3.2 Compensation and notification of third parties 23 Compensation for property loss or serious damage (1) If a person suffers loss of or serious damage to property as a direct result of an authorised operation conducted under this Act by the Australian Federal Police, the Territory is liable to pay to the person compensation as agreed between the Territory and the person or, in default of agreement, as decided by action against the Territory in a court of competent jurisdiction.

Conduct of controlled operations Part 3 Compensation and notification of third parties Division 3.2 Section 24 R4 17/12/21 Crimes (Controlled Operations) Act 2008 Effective: 17/12/21 page 19 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (2) Subsection (1) does not apply if the person— (a) suffered the loss or damage in the course of, or as a direct result of, engaging in any criminal activity or corrupt conduct (other than criminal activity or corrupt conduct that is controlled conduct); or (b) was a law enforcement officer involved in the authorised operation at the time of suffering the loss or damage. 24 Notification requirements (1) If any loss of or serious damage to property occurs in the course of or as a direct result of an authorised operation (other than property of the law enforcement agency on behalf of which the operation is conducted or a participant in the operation), the principal law enforcement officer for the operation must report the loss or damage to the chief officer of the law enforcement agency as soon as practicable. (2) The chief officer must take all reasonable steps to notify the owner of the property of the loss or damage. (3) The chief officer is not required to notify the owner of the property until satisfied that notification would not— (a) compromise or hinder the authorised operation; or (b) compromise the identity of a participant in the authorised 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.

Part 3 Conduct of controlled operations Division 3.3 Mutual recognition Section 25 page 20 Crimes (Controlled Operations) Act 2008 Effective: 17/12/21 R4 17/12/21 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Division 3.3 Mutual recognition 25 Mutual recognition of corresponding authority The following provisions apply, with any necessary changes, to a corresponding authority under a corresponding law, and to a corresponding authorised operation under that law, as if the corresponding authority were an authority given under section 10: (a) section 16 (Effect of authority); (b) section 17 (Defect in authority); (c) section 18 (Protection from criminal responsibility for controlled conduct during authorised operation); (d) section 19 (Civil liability not incurred); (e) section 20 (Effect of s 18 and s 19 on other laws relating to criminal investigation); (f) section 21 (Effect of being unaware of amendment or cancellation of authority); (g) section 22 (Protection from criminal responsibility for certain ancillary conduct).

Compliance and monitoring Part 4 Restrictions on disclosure of information Division 4.1 Section 26 R4 17/12/21 Crimes (Controlled Operations) Act 2008 Effective: 17/12/21 page 21 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Part 4 Compliance and monitoring Division 4.1 Restrictions on disclosure of information 26 Unauthorised disclosure of information (1) A person commits an offence if— (a) the person is a participant in, or is otherwise authorised to have information about, an authorised operation or a corresponding authorised operation; and (b) the person discloses information; and (c) the information relates to the authorised operation or corresponding authorised operation; and (d) the disclosure is not made— (i) in connection with the administration or execution of this Act or a corresponding law; or (ii) for the purposes of any legal proceeding arising out of or otherwise related to this Act or a corresponding law or of any report of any such proceeding; or (iii) in accordance with any requirement imposed by law. Maximum penalty: imprisonment for 2 years. (2) A person commits an offence if the person commits an offence against subsection (1) in circumstances in which the person— (a) intends to endanger the health or safety of any person; or (b) is reckless about whether the disclosure of the information endangers or will endanger the health or safety of any person. Maximum penalty: imprisonment for 10 years.

Part 4 Compliance and monitoring Division 4.2 Reporting and record-keeping Section 27 page 22 Crimes (Controlled Operations) Act 2008 Effective: 17/12/21 R4 17/12/21 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (3) A person commits an offence if the person commits an offence against subsection (1) in circumstances in which the person–– (a) intends to prejudice the effective conduct of an authorised operation or a corresponding authorised operation; or (b) is reckless about whether the disclosure of the information prejudices or will prejudice the effective conduct of an authorised operation or a corresponding authorised operation. Maximum penalty: imprisonment for 2 years. Division 4.2 Reporting and record-keeping 27 Principal law enforcement officers’ reports (1) Within 2 months after the completion of an authorised operation, the principal law enforcement officer for the operation must make a report in accordance with this section to the chief officer of the law enforcement agency. (2) The report must include the following details: (a) the dates and times when the authorised operation began and was completed; (b) the nature of the controlled conduct engaged in for the purposes of the operation; (c) details of the outcome of the operation; (d) if the operation 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 operation;

Compliance and monitoring Part 4 Reporting and record-keeping Division 4.2 Section 28 R4 17/12/21 Crimes (Controlled Operations) Act 2008 Effective: 17/12/21 page 23 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (e) details of any loss of or serious damage to property, or any personal injuries, occurring in the course of or as a direct result of the operation. 28 Chief officers’ annual reports (1) As soon as practicable after 30 July in each year, the chief officer of each law enforcement agency must give the Minister a report setting out the details required by subsection (2) in relation to controlled operations conducted on behalf of the agency during the previous financial year. (2) The report must include the following details: (a) the number of standard authorities that were granted or amended by the chief officer, and the number of standard applications for the granting or amendment of authorities that were refused by the chief officer, during the period to which the report relates; (b) the number of urgent authorities or urgent amendments of authorities that were granted by the chief officer, and the number of urgent applications for authorities or urgent amendments of authorities that were refused by the chief officer, during the period to which the report relates; (c) the nature of the criminal activities or corrupt conduct against which the authorised operations were directed; (d) the nature of the controlled conduct engaged in for the purposes of the authorised operations; (e) if any of the authorised 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;

Part 4 Compliance and monitoring Division 4.2 Reporting and record-keeping Section 28 page 24 Crimes (Controlled Operations) Act 2008 Effective: 17/12/21 R4 17/12/21 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (f) details of any loss of or serious damage to property, or any personal injuries, occurring in the course of or as a direct result of the authorised operations; (g) the number of authorities cancelled by the chief officer or that expired during the period to which the report relates; (h) any seizure, arrest and prosecution arising from the authorised operations. (3) The Minister may require the chief officer to give additional information in relation to any authorised operation to which a report relates. (4) The details mentioned in subsection (2) must be classified into controlled operations conducted in the ACT, in the ACT and 1 or more other jurisdictions or in 1 or more participating jurisdictions. (5) The report must not disclose any information that identifies any suspect or a participant in an authorised operation or that is likely to lead to a suspect or participant being identified. (6) This section does not require particulars of an authorised operation to be included in a report for a year if the operation had not been completed as at 30 June in that year, but the particulars must instead be included in the report for the year in which the operation is completed. (7) The chief officer must advise the Minister of any information in the report that, in the chief officer’s opinion, should be excluded from the report before the report is presented to the Legislative Assembly because the information, if made public, could reasonably be expected to— (a) endanger a person’s safety; or

Compliance and monitoring Part 4 Reporting and record-keeping Division 4.2 Section 29 R4 17/12/21 Crimes (Controlled Operations) Act 2008 Effective: 17/12/21 page 25 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (b) prejudice an investigation or prosecution; or (c) compromise any law enforcement agency’s operational activities or methodologies. (8) The 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 (7). (9) The Minister must present a copy of the report to the Legislative Assembly within 15 sitting days from the day on which the report is received by the Minister. 29 Keeping documents connected with authorised operation The chief officer of a law enforcement agency must cause the following to be kept: (a) each standard application made by a law enforcement officer of the agency; (b) each standard authority granted to a law enforcement officer of the agency; (c) each standard amendment application made by a law enforcement officer of the agency; (d) each standard amendment of authority granted to a law enforcement officer of the agency; (e) each order cancelling an authority granted to a law enforcement officer of the agency; (f) each report of a principal law enforcement officer of the agency under section 24 (1) or section 27.

Part 4 Compliance and monitoring Division 4.2 Reporting and record-keeping Section 30 page 26 Crimes (Controlled Operations) Act 2008 Effective: 17/12/21 R4 17/12/21 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 30 General register (1) The chief officer of a law enforcement agency must cause a general register to be kept. (2) The general register is to specify— (a) for each application under this Act made by a law enforcement officer of the agency (including an application for amendment of an authority)— (i) the date of the application; and (ii) whether the application was standard or urgent; and (iii) whether the application was made for a controlled operation conducted in the ACT, in the ACT and 1 or more other jurisdictions or in 1 or more participating jurisdictions; and (iv) whether the application was granted, refused or withdrawn; and (v) if the application was refused or withdrawn, the date and time of the refusal or withdrawal; and (vi) if the authority was amended, the date and time of the amendment; and (b) for each authority under this Act granted to a law enforcement officer of the agency— (i) the date and time when the authority was granted; and (ii) whether the authority was standard or urgent; and (iii) whether the application was made for a controlled operation conducted in the ACT, in the ACT and 1 or more other jurisdictions or in 1 or more participating jurisdictions; and

Compliance and monitoring Part 4 Reporting and record-keeping Division 4.2 Section 30 R4 17/12/21 Crimes (Controlled Operations) Act 2008 Effective: 17/12/21 page 27 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (iv) the name, and rank or position, of the person who granted the authority; and (v) each relevant offence in respect of which controlled conduct under the authority was to be engaged in; and (vi) the period of validity of the authority; and (vii) if the authority was cancelled, the date and time of cancellation; and (viii) the date and time when the authorised operation began and the date of completion of the operation; and (ix) the date on which the principal law enforcement officer for the operation made a report on the operation under section 27; and (x) if the authorised operation involved illicit goods (to the extent known)— (A) the nature and quantity of the illicit goods; and (B) the route through which the illicit goods passed in the course of the operation; and (xi) details of any loss of or serious damage to property, or any personal injuries, occurring in the course of or as a direct result of the operation; and (c) for each amendment of an authority— (i) the date and time when the amendment was made; and (ii) whether the amendment was standard or urgent; and (iii) the name, and rank or position, of the person who made the amendment.

Part 4 Compliance and monitoring Division 4.3 Inspections Section 31 page 28 Crimes (Controlled Operations) Act 2008 Effective: 17/12/21 R4 17/12/21 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Division 4.3 Inspections 31 Inspection of records by ombudsman (1) The ombudsman must, from time to time and at least once every 12 months, inspect the records of a law enforcement agency to determine the extent of compliance with this Act by the agency and law enforcement officers of the agency. (2) For the purpose of an inspection under this section, the ombudsman— (a) after notifying the chief officer of the law enforcement agency, may enter at any reasonable time premises occupied by the agency; and (b) is entitled to have full and free access at all reasonable times to all records of the agency that are relevant to the inspection; and (c) may require a member of staff of the agency to give the ombudsman any information that the ombudsman considers necessary, being information that is in the member’s possession, or to which the member has access, and that is relevant to the inspection. (3) The chief officer must ensure that members of staff of the agency give the ombudsman any assistance the ombudsman reasonably requires to enable the ombudsman to exercise functions under this section. (4) The ombudsman must give a written report prepared under the Annual Reports (Government Agencies) Act 2004, on the results of each inspection under this section in the preceding financial year. (5) The report must include a report on the comprehensiveness and adequacy of the records of the agency and the cooperation given by the agency in facilitating the inspection by the ombudsman of those records.

Miscellaneous Part 5 Section 32 R4 17/12/21 Crimes (Controlled Operations) Act 2008 Effective: 17/12/21 page 29 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Part 5 Miscellaneous 32 Evidence of authorities (1) A document purporting to be an authority granted under section 10— (a) is admissible in any legal proceedings; and (b) in the absence of evidence to the contrary, is proof in any proceedings (not being criminal or disciplinary proceedings against a law enforcement officer) that the person who granted the authority was satisfied of the facts of which he or she was required to be satisfied before granting the authority. (2) A document purporting to be an authority within the meaning of a corresponding law granted under a provision of the corresponding law that corresponds to section 10— (a) is admissible in any legal proceedings in the ACT; and (b) in the absence of evidence to the contrary, is proof in any proceedings (not being criminal or disciplinary proceedings against a law enforcement officer) that the person who granted the authority was satisfied of the facts of which he or she was required to be satisfied under the corresponding law before granting the authority. 33 Delegation (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 Act must not be delegated to any other person. (2) A chief officer may delegate to a senior officer of the law enforcement agency any of the chief officer’s functions under this Act relating to the authorisation of controlled operations (including the amendment and cancellation of controlled operations and notifications under section 24 (2)).

Part 5 Miscellaneous Section 34 page 30 Crimes (Controlled Operations) Act 2008 Effective: 17/12/21 R4 17/12/21 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au (3) In this section: senior officer means a person for the time being holding office as— (a) in relation to the Australian Federal Police—a police officer of the rank of commander (or a higher rank); or (b) in relation to the Australian Crime Commission, any of the following: (i) the Director National Operations; (ii) a Director; (iii) an office of the Australian Crime Commission that is prescribed by regulation; or (c) in relation to the integrity commission––a position of the integrity commission prescribed by regulation. 34 Regulation-making power The Executive may make regulations for this Act. Note A regulation must be notified, and presented to the Legislative Assembly, under the Legislation Act.

Dictionary R4 17/12/21 Crimes (Controlled Operations) Act 2008 Effective: 17/12/21 page 31 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Dictionary (see s 3) Note 1 The Legislation Act contains definitions and other provisions relevant to this Act. Note 2 For example, the Legislation Act, dict, pt 1, defines the following terms: • chief police officer • function • integrity commission • integrity commissioner • Legislative Assembly • ombudsman • territory law • the Territory. Australian Crime Commission means the Australian Crime Commission established by the Australian Crime Commission Act 2002 (Cwlth). authorised operation means a controlled operation for which an authority is in force. authority means an authority in force under part 2 (Authorisation of controlled operations). chief officer means–– (a) in relation to the Australian Federal Police––the chief police officer; and (b) in relation to the Australian Crime Commission––means the chief executive officer of the Australian Crime Commission; and (c) in relation to the integrity commission––the integrity commissioner. civilian participant, in an authorised operation, means a participant in the operation who is not a law enforcement officer.

Dictionary page 32 Crimes (Controlled Operations) Act 2008 Effective: 17/12/21 R4 17/12/21 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au conduct includes an act or omission. controlled conduct means conduct for which a person would, apart from section 18 (Protection from criminal responsibility for controlled conduct during authorised operation) or section 25 (Mutual recognition of corresponding authority), be criminally responsible. controlled operation means an operation that— (a) is conducted, or intended to be conducted, for the purpose of obtaining evidence that may— (i) lead to the prosecution of a person for a relevant offence; or (ii) be used in an investigation under the Integrity Commission Act 2018; and (b) involves, or may involve, controlled conduct. corresponding authorised operation means any operation in the nature of a controlled operation that is authorised by or under the provisions of a corresponding law. corresponding authority means an authority authorising a controlled operation (within the meaning of a corresponding law) that is in force under a corresponding law. corresponding law means a law of another jurisdiction that corresponds to this Act, and includes a law of another jurisdiction that is declared by regulation to correspond to this Act. corresponding participant means a person who is authorised by a corresponding authority to participate in a corresponding authorised operation. corrupt conduct—see the Integrity Commission Act 2018, dictionary. criminal activity means conduct that involves the commission of an offence by 1 or more people. illicit goods means goods the possession of which is a contravention of the law of the ACT.

Dictionary R4 17/12/21 Crimes (Controlled Operations) Act 2008 Effective: 17/12/21 page 33 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au investigator—see the Integrity Commission Act 2018, dictionary. jurisdiction means a State or Territory of the Commonwealth. law enforcement agency means— (a) the Australian Federal Police; or (b) the Australian Crime Commission; or (c) the integrity commission. law enforcement officer— (a) means— (i) for the Australian Federal Police—a police officer; or (ii) for the Australian Crime Commission—a member of staff of the Australian Crime Commission; or (iii) for the integrity commission—an investigator; and (b) includes a person who is seconded to a law enforcement agency, including (but not limited to) a member of the police force or police service, and a police officer (however described), of another jurisdiction. law enforcement participant, in an authorised operation, means a participant in the operation who is a law enforcement officer. participant, in an authorised operation, means a person who is authorised under this Act to engage in controlled conduct for the purposes of the operation. participating jurisdiction means a jurisdiction in which a corresponding law is in force. principal law enforcement officer, for an authorised operation, means the law enforcement officer who is responsible for the conduct of the operation.

Dictionary page 34 Crimes (Controlled Operations) Act 2008 Effective: 17/12/21 R4 17/12/21 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au relevant offence means— (a) an offence against an ACT law punishable by imprisonment of 3 years or more; or (b) an offence against an ACT law that is prescribed by regulation. standard amendment application—see section 13. standard amendment of authority—see section 13. standard application—see section 9. standard authority—see section 11. suspect means a person reasonably suspected of— (a) having committed or being likely to have committed, or of committing or being likely to commit, a relevant offence; or (b) having engaged in or being likely to have engaged in, or of engaging in or being likely to engage in, corrupt conduct. urgent amendment application—see section 13. urgent amendment of authority—see section 13. urgent application—see section 9. urgent authority—see section 11.

Endnotes About the endnotes 1 R4 17/12/21 Crimes (Controlled Operations) Act 2008 Effective: 17/12/21 page 35 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au Endnotes 1 About the endnotes Amending and modifying laws are annotated in the legislation history and the amendment history. Current modifications are not included in the republished law but are set out in the endnotes. Not all editorial amendments made under the Legislation Act 2001, part 11.3 are annotated in the amendment history. Full details of any amendments can be obtained from the Parliamentary Counsel’s Office. Uncommenced amending laws are not included in the republished law. The details of these laws are underlined in the legislation history. Uncommenced expiries are underlined in the legislation history and amendment history. If all the provisions of the law have been renumbered, a table of renumbered provisions gives details of previous and current numbering. The endnotes also include a table of earlier republications. 2 Abbreviation key A = Act NI = Notifiable instrument AF = Approved form o = order am = amended om = omitted/repealed amdt = amendment ord = ordinance AR = Assembly resolution orig = original ch = chapter par = paragraph/subparagraph CN = Commencement notice pres = present def = definition prev = previous DI = Disallowable instrument (prev...) = previously dict = dictionary pt = part disallowed = disallowed by the Legislative r = rule/subrule Assembly reloc = relocated div = division renum = renumbered exp = expires/expired R[X] = Republication No Gaz = gazette RI = reissue hdg = heading s = section/subsection IA = Interpretation Act 1967 sch = schedule ins = inserted/added sdiv = subdivision LA = Legislation Act 2001 SL = Subordinate law LR = legislation register sub = substituted LRA = Legislation (Republication) Act 1996 underlining = whole or part not commenced mod = modified/modification or to be expired

Endnotes 3 Legislation history page 36 Crimes (Controlled Operations) Act 2008 Effective: 17/12/21 R4 17/12/21 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 3 Legislation history Crimes (Controlled Operations) Act 2008 A2008-32 notified LR 18 August 2008 s 1, s 2 commenced 18 August 2008 (LA s 75 (1)) remainder commenced 19 August 2008 (s 2) as amended by Freedom of Information Act 2016 A2016-55 sch 4 pt 4.5 (as am by A2017-14 s 19) notified LR 26 August 2016 s 1, s 2 commenced 26 August 2016 (LA s 75 (1)) sch 4 pt 4.5 commenced 1 January 2018 (s 2 as am by A2017-14 s 19) Justice and Community Safety Legislation Amendment Act 2017 (No 2) A2017-14 s 19 notified LR 17 May 2017 s 1, s 2 commenced 17 May 2017 (LA s 75 (1)) s 19 commenced 24 May 2017 (s 2 (1)) Note This Act only amends the Freedom of Information Act 2016 A2016-55. Integrity Commission Act 2018 A2018-52 sch 1 pt 1.6 (as am by A2019-18 s 4) notified LR 11 December 2018 s 1, s 2 commenced 11 December 2018 (LA s 75 (1)) sch 1 pt 1.6 commenced 1 December 2019 (s 2 (2) (a) as am by A2019-18 s 4) Integrity Commission Amendment Act 2019 A2019-18 s 4 notified LR 14 June 2019 s 1, s 2 commenced 14 June 2019 (LA s 75 (1)) s 3, s 4 commenced 15 June 2019 (s 2 (1)) Note This Act only amends the Integrity Commission Act 2018 A2018-52. Justice and Community Safety Legislation Amendment Act 2021 (No 2) A2021-33 pt 5 notified LR 10 December 2021 s 1, s 2 commenced 10 December 2021 (LA s 75 (1)) pt 5 commenced 17 December 2021 (s 2 (1))

Endnotes Amendment history 4 R4 17/12/21 Crimes (Controlled Operations) Act 2008 Effective: 17/12/21 page 37 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 4 Amendment history Commencement s 2 om LA s 89 (4) Relationship to other laws and matters s 7 am A2016-55 amdt 4.7; A2018-52 amdt 1.32 Application for authority to conduct controlled operation s 9 am A2018-52 amdt 1.33 Decision on application for authority s 10 am A2018-52 amdt 1.34, amdt 1.35 Form of authority s 11 am A2018-52 amdt 1.36 Civil liability not incurred s 19 am A2018-52 amdt 1.37 Compensation for property loss or serious damage s 23 am A2018-52 amdt 1.38 Chief officers’ annual reports s 28 am A2018-52 amdt 1.39 Delegation s 33 am A2018-52 amdt 1.40; A2021-33 s 13 Dictionary dict am A2018-52 amdt 1.41 def chief officer am A2018-52 amdt 1.42 def controlled operation am A2018-52 amdt 1.43 def corrupt conduct ins A2018-52 amdt 1.44 def investigator ins A2018-52 amdt 1.44 def law enforcement agency am A2018-52 amdt 1.45 def law enforcement officer am A2018-52 amdt 1.46 def suspect sub A2018-52 amdt 1.47

Endnotes 5 Earlier republications page 38 Crimes (Controlled Operations) Act 2008 Effective: 17/12/21 R4 17/12/21 Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au 5 Earlier republications Some earlier republications were not numbered. The number in column 1 refers to the publication order. Since 12 September 2001 every authorised republication has been published in electronic pdf format on the ACT legislation register. A selection of authorised republications have also been published in printed format. These republications are marked with an asterisk (*) in column 1. Electronic and printed versions of an authorised republication are identical. Republication No and date Effective Last amendment made by Republication for R1 19 Aug 2008 19 Aug 2008– 31 Dec 2017 not amended new Act R2 1 Jan 2018 1 Jan 2018– 30 Nov 2019 A2017-14 amendments by A2016-55 as amended by A2017-14 R3 1 Dec 2019 1 Dec 2019– 16 Dec 2021 A2019-18 amendments by A2018-52 as amended by A2019-18 © Australian Capital Territory 2021

Controlled operation and controlled conduct

"Controlled operation" is a statutory term for operations intended to obtain evidence that may lead to prosecution or be used in Integrity Commission investigations, and that involve controlled conduct , conduct that would, apart from s 18 or s 25, make the person criminally responsible (dictionary; controlled operation; controlled conduct).
Controlled conduct therefore includes otherwise unlawful acts that participants are authorised to undertake for operation purposes, subject to statutory limits (s 10(2)(d)-(h)).

Authority and who grants it

The authority that permits controlled conduct is granted by the chief officer of an agency (AFP, ACC, Integrity Commission) (s 9-11; dictionary, chief officer; law enforcement agency).
Applications may be standard (written) or urgent (oral, telephonic, email etc). Authorities may similarly be standard (written) or urgent (oral/other) when delay threatens operation success (s 9(2), s 11(1)).

Scope and limits

Preconditions require reasonable grounds a “relevant offence” (an ACT offence punishable by 3+ years or regulation-prescribed) has been, is, or is likely to be committed (s 10(2)(a); dictionary, relevant offence).
The statute imposes proportionality and safety limits: unlawful conduct must be limited to the minimum necessary (s 10(2)(d)); the operation must minimise illicit goods being controlled by non-law-enforcement at its end (s 10(2)(e)); participants must not intentionally induce others to commit offences they would not otherwise commit or induce corrupt conduct (s 10(2)(g); s 18(b)); and certain classes of harm and offences are excluded (death, serious injury, sexual offences, serious unlawful damage other than illicit goods) (s 10(2)(h); s 18(c)).

Civil and criminal protection

Section 18 provides that participants in authorised operations are not criminally responsible for controlled conduct meeting statutory criteria.
Section 19 shifts civil liability: participants do not incur civil liability for conduct carried out in accordance with the authority; such liability attaches to the Territory instead (s 19(2)-(3)). Civil immunity also requires compliance with any requirements prescribed by regulation (s 19(2)(e)).

Mutual recognition

Corresponding authorities issued by other jurisdictions with corresponding laws are recognised and given the same effects as authorities under this Act for listed provisions (s 25). The Act allows participating jurisdictions where corresponding laws are in force to be identified in authorities (s 11(3)(e); s 25).

Records, reporting and oversight

Principal law enforcement officers must report within two months after completion of an authorised operation (s 27). Chief officers must prepare annual reports for the Minister including quantitative and descriptive data on authorities and operations for the preceding financial year (s 28). The Ombudsman inspects agency records at least annually and must report under the Annual Reports (Government Agencies) Act (s 31). Agencies must retain core documentation and maintain a general register (s 29-30).

Confidentiality and evidentiary rules

The Act creates offence provisions for unauthorised disclosure of operational information by participants or authorised persons (s 26). Penalties scale with culpable mental states and consequences, from 2 years up to 10 years where disclosure endangers health or safety (s 26(1)-(2)).
Documents purporting to be an authority are admissible and, absent contrary evidence, proof that the granting officer was satisfied of required facts in non-criminal and non-disciplinary proceedings (s 32).

Delegation and limits on delegation

Chief officer functions are non-delegable except that chief officers may delegate authorisation functions to specified senior officers (ranked commander or equivalent in AFP; specified ACC roles; prescribed Integrity Commission positions) (s 33).

Interplay with other investigatory powers

Section 20 explicitly excludes s 18 and s 19 from altering legal authorisations under laws addressing arrest, searches, surveillance, forensic procedures, assumed identities and other investigatory powers , such powers remain governed by their own laws (s 20).

Primary decision-makers and agencies

Chief officers of the three law enforcement agencies (AFP, Australian Crime Commission, integrity commissioner for ACT Integrity Commission) are the statutory decision-makers for granting, amending and cancelling authorities (s 11(1), s 13(1), s 15; dictionary, chief officer). The Act makes clear the chief officer role cannot be delegated except to prescribed senior officers for authorisation functions (s 33).

Law enforcement officers and participants

Law enforcement officers may apply for authorities (s 9(1)). Participants in authorised operations include law enforcement participants (law enforcement officers authorised to engage in controlled conduct) and civilian participants (non-law‑enforcement persons authorised to engage in particular controlled conduct) (dictionary; s 11(3)(d), (g)).
Civilian participants are explicitly constrained: any role assigned to a civilian participant must not be one that could be adequately performed by a law enforcement officer (s 10(2)(i)); civilian participants must act in accordance with law enforcement instructions to obtain criminal or civil protections (s 18(d); s 19(2)(d)).

Third parties and suspects

"Suspects" are persons reasonably suspected of committing a relevant offence or engaging in corrupt conduct; authorities should identify suspects to the extent known (s 11(3)(h); dictionary, suspect).
Third-party owners of property may be affected; the Territory is liable to compensate for property loss/serious damage where that loss is a direct result of an authorised operation conducted by the AFP (s 23(1)), subject to exclusions (s 23(2)). Chief officers must take reasonable steps to notify owners regarding loss or damage, with exceptions where notification would compromise operations or public interest (s 24).

The Territory and Minister

The Territory assumes civil liability otherwise attaching to participants (s 19(3)). Chief officers must provide annual statistics and information to the Minister (s 28), and the Minister presents annual reports to the Legislative Assembly (s 28(9)).

Oversight and external reviewers

The Ombudsman inspects agency records at least annually to determine compliance and must report (s 31).
The Act excludes FOI and Territory Records Acts from applying to investigations, operations and records under this Act (s 7(5)), constraining external access paths; however, parliamentary oversight occurs through the Ministerial report to the Assembly (s 28).

Other jurisdictions and participants

The Act affects multi-jurisdictional cooperation: authorities must state participating jurisdictions where controlled conduct is engaged in; corresponding authorities under corresponding laws in other jurisdictions are given mutual recognition for certain provisions (s 11(3)(e); s 25). Persons seconded to a law enforcement agency from another jurisdiction are included within the definition of law enforcement officer (dictionary, law enforcement officer(b)).

Legal practitioners, defence counsel and courts

Courts are affected by the Act’s evidentiary directions: the court’s discretion to admit or exclude evidence remains (s 7(3)), but s 7(4) directs the court to disregard that evidence resulted from criminal or corrupt conduct where it was obtained by a participant acting in an authorised operation (s 7(4)). Section 32 also affects evidentiary proof of the fact an authority was granted.

Members of the public and journalists

Members of the public or journalists who receive operational information from participants or authorised persons may be indirectly affected by the disclosure offences (s 26). The Act also excludes application of FOI and Territory Records Acts to these operations and records (s 7(5)).

Accountants, insurers and civil claimants

The Territory bears civil liability per s 19(3), altering the practical defendant in civil suits arising from authorised conduct and shaping insurer and indemnity considerations for agencies and participants. Claimants must bring action against the Territory in default of agreement (s 23(1)).

Who decides and procedural duties

A law enforcement officer may apply to their agency’s chief officer for an authority (s 9(1)). Applications must provide sufficient information to enable the chief officer’s decision and disclose whether related operations/applications have occurred (s 9(4)). The chief officer may require additional information (s 9(5)). Urgent oral applications require subsequent written records given to the chief officer as soon as practicable (s 9(6)).
The chief officer must consider the statutory criteria in s 10(2) and may grant, refuse, amend or cancel an authority. Amendments and cancellations have formal requirements, including written notes and written amendments for standard changes (s 10, s 13, s 14, s 15).

Validity, duration and amendment

Standard authorities may be granted in writing and are valid for up to 3 months; urgent authorities may be granted orally when delay would affect operation success and are valid for up to 7 days unless amended (s 11(1)-(3)(i); s 12). The chief officer may amend authorities on their own initiative or on application, subject to limitations on extending urgent authorities or extending standard authorities beyond 3 months from grant (s 13(1)-(2)). Amendments cannot authorise a "significant alteration" of the operation’s nature (s 13(10)).

Limits on conduct and duty to minimise harm

Authorities must identify the nature of controlled conduct and the people authorised to engage in it (s 11(3)(d), (g)). Prior to granting an authority, the chief officer must be satisfied on reasonable grounds operations will be conducted in ways that limit unlawful conduct to the minimum necessary, minimise illicit goods under non-law-enforcement control at the operation’s end, and not induce persons to commit offences they would not otherwise commit (s 10(2)(d)-(g)). The chief officer must also be satisfied that controlled conduct can be accounted for in a way that enables compliance with part 4 reporting (s 10(2)(f)).

Protections and rights of participants

Criminal immunity: participants engaging in controlled conduct in accordance with a valid authority are not criminally responsible for those offences, subject to exclusions (s 18).
Civil immunity and state indemnity: participants do not incur civil liability under s 19(2) where conditions met, and liability attaches to the Territory instead (s 19(3)). Civil immunity requires compliance with any regulatory requirements (s 19(2)(e)).
Effect of unawareness: s 21 protects participants who are unaware and not reckless about amendments or cancellations, allowing protections to continue as if the authority had not been altered.

Reporting, record-keeping and disclosure duties

Principal law enforcement officers must report to the chief officer within two months of operation completion with specified operational details (s 27). Chief officers must provide annual reports to the Minister by 30 July containing prescribed data and must advise the Minister of information that should be excluded from the Legislative Assembly report on public interest grounds (s 28(1)-(9)).
Agencies must retain standard applications, authorities, amendment applications, amendments, cancellation orders and principal officer reports (s 29), and maintain a general register with prescribed entries for each application, authority and amendment (s 30).

Confidentiality and disclosure prohibitions

Participants and those authorised to know operation information must not disclose information about the operation except for specified permissible purposes (administration of the Act, legal proceedings, legal compulsion) (s 26(1)). Unauthorised disclosure carries a maximum penalty of two years’ imprisonment; where disclosure intentionally or recklessly endangers health or safety, the maximum is 10 years (s 26(1)-(2)). Where disclosure intends or recklessly prejudices operations, maximum penalty is two years (s 26(3)).

Oversight rights and duties

The Ombudsman has statutory rights to inspect relevant agency premises and records after notifying the chief officer and can compel staff to provide relevant information (s 31). The Ombudsman must report inspections under the Annual Reports (Government Agencies) Act (s 31(4)-(5)).

Evidentiary effect of authorities

Documents purporting to be an authority are admissible in proceedings and, absent contrary evidence, are prima facie proof that the grantor was satisfied of the necessary facts, except in criminal or disciplinary proceedings against law enforcement officers (s 32(1)-(2)).

Delegation constraints

Chief officer functions are largely non-delegable except that a chief officer may delegate authorisation functions to senior officers specified by rank or role in s 33. This restricts who can make authorisation decisions and who is accountable (s 33).

Criminal penalties for unauthorised disclosure

Section 26 creates specific criminal offences for unauthorised disclosure of information about authorised operations by participants or those otherwise authorised to have such information. The basic offence under s 26(1) carries a maximum penalty of two years’ imprisonment.
Aggravated disclosure: where the discloser intends to endanger the health or safety of any person, or is reckless about such danger, the maximum penalty is 10 years’ imprisonment (s 26(2)).
Disclosure that intends to prejudice, or is reckless about prejudicing, effective conduct of an authorised operation attracts a maximum penalty of two years’ imprisonment (s 26(3)).

Criminal Code and other offences

The Act does not exhaust the criminal law; other criminal laws remain applicable. Section 5 (Offences against Act,application of Criminal Code etc) expressly brings the Criminal Code chapter 2 principles into operation for offence provisions against this Act, including principles of criminal responsibility, burdens of proof and defences (s 5 note). Operational conduct that falls outside the protections of s 18 could attract ordinary criminal prosecution under Commonwealth or territory criminal laws.

Administrative enforcement and oversight

The Ombudsman has inspection powers and must inspect agency records at least annually to determine compliance (s 31(1)). The Ombudsman may enter agency premises after notifying the chief officer and obtain access to records and compel staff cooperation (s 31(2)-(3)). The Ombudsman reports inspection results under existing annual reporting arrangements (s 31(4)-(5)). These provisions institutionalise administrative scrutiny rather than criminal enforcement.

Civil liability and state liability

Section 19 shifts civil liability away from participants to the Territory for conduct in accordance with an authority, subject to exceptions (s 19(3), s 23). This does not eliminate civil claims: claimants can seek compensation from the Territory (s 23(1)) where property loss/serious damage results as a direct result of an authorised operation conducted by the AFP (s 23(1)). Subsection 23(2) lists exclusions (loss resulting from criminal activity or corrupt conduct other than controlled conduct, or loss to law enforcement officer involved in the operation) (s 23(2)).

Evidentiary consequences

Section 32 makes documents purporting to be an authority admissible and, absent contrary evidence, proof that the person granting the authority was satisfied of the statutory facts required for grant, in any legal proceedings except criminal or disciplinary ones against a law enforcement officer (s 32(1)-(2)). That provision eases proof of authority in civil and other proceedings and may have preclusive effects on some factual challenges.

Ministerial and parliamentary accountability

Chief officers must furnish annual reports to the Minister (s 28); the Minister must present these to the Legislative Assembly (s 28(9)). The Minister may require additional information from chief officers about particular authorised operations (s 28(3)). The Act provides mechanisms for parliamentary visibility (s 28) while permitting exclusion of information on security or justice grounds (s 28(7)-(8)).

Delegation and internal accountability

The Act strictly limits delegation of chief officer functions but allows delegation to senior officers prescribed by rank or statutorily enumerated positions (s 33). That designates who may lawfully authorise operations and where internal accountability for decisions lies.

Regulatory backstops and penalties framework

The Act contemplates regulations that may prescribe further requirements for civil immunity (s 19(2)(e)) and other matters (s 34). Penalty units at the republication date are quoted in the preamble ($160 individual, $810 corporate), and Criminal Code provisions apply to other offences (preliminary notes).

Preservation and exclusion of other statutory powers

The Act expressly does not affect territory laws that authorise, control or monitor operations wholly within the ACT that fit the Act’s purpose (s 7(1)). It limits itself to creating authorisation and protections for controlled operations, not to displacing other investigatory powers.
Section 20 carves out categories of criminal investigatory law to which sections 18 and 19 do not apply: arrest/detention, searches of persons, entry/searches/inspection of premises, seizures of property, forensic procedures, electronic surveillance or telecommunications interception, identification procedures, acquisition/use of assumed identities, and any other matter concerning investigatory powers (s 20(a)-(i)). That is, the statutory criminal and civil protections in s 18-19 do not override requirements or authorisations that otherwise exist under specific investigatory statutes.

Evidence law

Section 7(3) preserves a court’s discretion on admissibility and stays in interests of justice but mandates that courts disregard the fact that evidence was obtained by a participant engaging in criminal activity if the participant acted under an authority or corresponding authority and the conduct was controlled conduct (s 7(3)-(4)). This interacts with common-law and statutory evidence rules by providing an explicit statutory directive to treat evidence obtained by authorised participants differently from ordinary unlawful means of acquisition.

Mutual recognition and participating jurisdictions

The Act permits mutual recognition of corresponding authorities granted under corresponding laws in other jurisdictions, applying certain provisions as if the corresponding authority were an ACT authority (s 25). Authorities must identify participating jurisdictions and the Act contemplates cross-jurisdictional operations where corresponding laws apply (s 11(3)(e); s 25). The Act therefore interfaces with laws of other States and Territories to allow lawful cross-border operations, where declared "corresponding" by regulation or where the law corresponds substantively (dictionary, corresponding law).

Freedom of information and records law exclusions

Section 7(5) expressly exempts investigations, operations, activities and records under this Act from the Freedom of Information Act 2016 and the Territory Records Act 2002. That narrows public access to records created under the Act and moves oversight towards the Minister and Ombudsman routes provided within the Act (s 28, s 31).

Criminal Code and other criminal laws

The Act states that criminal law principles in the Criminal Code chapter 2 apply to offences under the Act (s 5, note). Where participants engage in conduct outside the authorised scope (or the authority is absent or defective in material particular), ordinary criminal laws may apply. The Act’s immunities are therefore limited, and interaction with the Criminal Code and other criminal statutes remains substantive.

Civil liability and public law remedies

The Act transfers civil liability for authorised conduct from participants to the Territory (s 19(3)) and provides a compensation route (s 23). Claimants seeking redress for property loss or serious damage as a direct result of an AFP operation must seek compensation from the Territory (s 23(1)). This changes the defendant in civil litigation and the route for remedies, and intersects with administrative law and public liability frameworks.

Regulatory instruments

The Executive may make regulations for the Act (s 34). Regulations may specify requirements relevant to civil immunity (s 19(2)(e)) and identify positions for delegation (s 33(3)(c) , positions of the integrity commission prescribed by regulation). The Act therefore anticipates subordinate instruments that may affect compliance burdens and procedural details.

Evidentiary presumptions

Section 32 provides that documents purporting to be authorities are admissible and, in non-criminal/disciplinary proceedings, are prima facie proof of the granting officer’s satisfaction of statutory prerequisites. This interfaces with evidence practice and may influence contestation of authority validity in civil proceedings versus criminal/disciplinary challenges (s 32).

Interaction with Integrity Commission Act

The Act explicitly includes use of controlled operation evidence in Integrity Commission investigations (s 6(a)(ii); dictionary referencing Integrity Commission Act 2018 for "corrupt conduct" definitions). Amendments in 2018-2019 referenced in the amendment history (endnotes) indicate legislative intent to align with integrity functions (endnotes 3-4).

Legislative timeline and relevant amendments

The Act was originally notified on 18 August 2008 and commenced in full on 19 August 2008 (legislation history, endnote 3).
Subsequent notable amendments and interactions are recorded in the endnotes and amendment history (endnote 4). The Act has been amended to reflect changes in freedom-of-information coverage, to align with the Integrity Commission regime, and to update delegation provisions.

Key amending Acts and changes (per endnote 4)

Freedom of Information Act 2016 (A2016-55): Amended s 7 to exclude investigations, operations, activities and records under this Act from the Freedom of Information Act 2016 (s 7(5)) and made consequential drafting updates (amendment item listed in endnote 4).
Justice and Community Safety Legislation Amendment Act 2017 (No 2) (A2017-14): Amended the FOI interaction as reflected in 2016 changes (endnote 3-4).
Integrity Commission Act 2018 (A2018-52): Multiple amendments to align definitions and functions with the Integrity Commission scheme. Specific changes recorded in the amendment history included:
- Section 7 (relationship to other laws) amended (A2018-52 amdt 1.32).
- Section 9 (application for authority) amended (A2018-52 amdt 1.33).
- Section 10 (decision on application) amended (A2018-52 amdt 1.34, amdt 1.35).
- Section 11 (form of authority) amended (A2018-52 amdt 1.36).
- Section 19 (civil liability not incurred) amended (A2018-52 amdt 1.37).
- Section 23 (compensation) amended (A2018-52 amdt 1.38).
- Section 28 (chief officers’ annual reports) amended (A2018-52 amdt 1.39).
- Section 29 and dictionary amendments and insertions of definitions to reflect integrity functions (A2018-52 amdt 1.40-1.47).
Integrity Commission Amendment Act 2019 (A2019-18): Commenced some Integrity Commission provisions affecting this Act, with commencement varied dates (endnote 3).
Justice and Community Safety Legislation Amendment Act 2021 (No 2) (A2021-33): Amended s 33 (delegation) to clarify or expand delegation to integrity commission positions or to refine prescribed senior officer definitions (endnote 4 indicates s 33 amended by A2021-33 s 13).

Form and content updates

Amendments tended to adjust definitions (e.g. "chief officer", "law enforcement agency", "law enforcement officer", "suspect", "controlled operation") and procedural elements (applications, decision criteria, form of authority, reporting) to reflect the inclusion of the Integrity Commission and to refine mutual recognition and reporting obligations. Specific amendment item numbers are listed in endnote 4.

Commencement nuances

The legislation history sets out commencement dates for the Act and subsequent amending Acts. Some amendments to the Act were linked to staged commencements in the Integrity Commission Acts and the FOI Act. The republication reflects the state of the Act as at 17 December 2021 (endnote 3).

Practical effect of amendments

The amendments align the controlled-operations framework with ACT integrity functions and provide updated internal accountability and recordkeeping standards. They also clarified the FOI and records exclusions and refined delegation rules. The Act’s machinery has been iteratively refined through these amendment instruments, as listed in the endnotes.

Regulatory instruments and uncommenced modifications

The Act contemplates regulations (s 34), and the endnotes note that editorial changes and modifications may appear separately under the Legislation Act provisions (endnote 1). Readers should consult the legislation register for any subsequent uncommenced amendments or regulatory instruments affecting the Act.

No cases named in the statute

The Act text and the endnotes do not cite, record or summarise any judicial decisions. The Act itself is not accompanied by a litigation history section in the republication material provided.

Potential areas for litigation grounded in Act provisions

Admissibility and use of evidence: Section 7(3) preserves a court’s discretion on admissibility but s 7(4) directs courts to disregard that evidence resulted from a participant engaging in criminal activity provided certain conditions are met. Courts may be asked to interpret the interplay between s 7(3) and s 7(4) where defendants challenge admissibility or argue prejudicial use of evidence. Although no cases are named in the source, s 7(4)’s instruction to "disregard" the fact that evidence derived from criminal/corrupt conduct raises evidentiary and discretion questions that could be litigated.
Validity and scope of authorities: Section 32 renders documents purporting to be authorities admissible and, in non-criminal or non-disciplinary proceedings, prima facie proof of the granting officer's satisfaction of statutory prerequisites absent contrary evidence. Challenges to the authenticity, scope or material defects in authorities may arise; s 17 limits invalidation of authorities to defects that affect material particulars, but litigants may still litigate whether defects are material. These are areas where judicial interpretation is foreseen by the Act’s own evidentiary mechanics.
Civil liability and compensation: The Act transfers civil liability to the Territory for participants’ authorised conduct (s 19(3)) and creates a compensation route for property loss/serious damage (s 23). Disputes over directness of loss or whether exclusions apply (s 23(2)) could be litigated where claimants seek compensation from the Territory.
Interpretation of limitations on conduct: The statutory prohibitions on inducing third parties to commit offences they would not otherwise commit (s 10(2)(g); s 18(b)), and on engaging in conduct likely to cause death or serious injury or sexual offences (s 10(2)(h); s 18(c)), set standards whose scope may be argued in court in offences or civil claims.
Confidentiality and disclosure offences: Prosecutions under s 26 for unauthorised disclosure may progress to criminal litigation, and courts would interpret mens rea requirements and exceptions. The Act distinguishes several culpable mental states with differing maximum penalties (s 26(1)-(3)), potentially generating legal arguments about recklessness, intent and harm.
Interaction with investigatory powers and statutory exclusions: Section 20 excludes s 18 and s 19 from applying to conduct authorised under other investigatory laws (search/seizure, surveillance, forensic procedures). Litigation may test whether particular conduct falls under those excluded investigatory powers or remains within s 18’s coverage.

Absence of named decisions

Because the Act’s republication does not list judicial decisions, this section cannot cite case law. Practitioners should search jurisdictional authorities (ACT and federal courts) for reported decisions interpreting the Act or deciding cases that involve s 18-s 26, s 7 evidentiary provisions, s 32 evidentiary presumptions, or s 23 compensation claims.

Advisory note for litigators and counsel

Where litigation arises, the Act sets out specific statutory facts and evidentiary presumptions that will shape pleadings and evidence strategies: challenge to authority (material defect under s 17), proof by document purporting to be an authority (s 32), and statutory exclusions that defeat criminal or civil responsibility (s 18-19). The Ombudsman’s inspection reports (s 31) and the chief officer’s annual reports (s 28) may be sources of factual context, subject to redactions required in the public interest (s 28(7)-(8)).

Urgent authorities and oral evidence

The Act permits urgent applications and urgent authorities to be made orally and by telephone, fax, email or other communications (s 9(2), s 11(1)). While necessary for operational agility, urgent oral authorities require contemporaneous written notes (s 11(5)) and as soon as practicable written records of urgent applications must be made and given to the chief officer (s 9(6)). Practitioners should be alert that failure to keep prescribed written notes for urgent authorities may complicate evidentiary proof of the authority’s existence or scope under s 32, though s 17 prevents invalidation of authorities except for material defects.

Duration limits and amendment constraints

Standard authorities are limited to three months and urgent authorities to seven days (s 11(3)(i); s 12). Section 13 forbids amendments that extend the period of validity of an urgent authority, and prevents extending a standard authority beyond three months from the date it was granted (s 13(2)). Attempting to use repeated urgent extensions or serial amendments to evade these time limits risks administrative invalidity and operational exposure.

Delegation does not equal open delegation

Chief officer functions are generally non-delegable, but the chief officer may delegate authorisation functions only to specific senior officers described by rank or position (s 33). Delegations outside the statutory categories may be invalid; agencies should ensure delegations conform to s 33 to avoid legal challenge.

Civil immunity conditionality and regulations

Civil immunity under s 19 requires compliance with any requirements prescribed by regulation (s 19(2)(e)). At the time of republication, the Act contemplates regulations (s 34) but practitioners must confirm whether regulations have been made that impose preconditions to civil immunity. Absent awareness of such regulatory requirements, participants risk losing civil protection.

Mutual recognition scope and participating jurisdictions

Mutual recognition under s 25 applies to corresponding authorities granted under corresponding laws, but the Act’s effect is limited to certain provisions listed in s 25. If an operation spans jurisdictions where laws are not declared as "corresponding" or lack materially equivalent provisions, participants may not enjoy protection. Authorities must identify participating jurisdictions (s 11(3)(e)), and it is a "gotcha" to rely on mutual recognition without confirming the counterpart law’s correspondence and whether it has been declared by regulation.

Evidence presumptions and limits

Section 32 creates a strong evidentiary presumption for documents purporting to be authorities in non-criminal and non-disciplinary proceedings. However, that presumption does not apply in criminal or disciplinary proceedings against law enforcement officers (s 32(1)-(2)). Parties in criminal proceedings can challenge the existence or sufficiency of authorities and will not be bound by the s 32 presumption. This dual track is a potential trap for defence counsel and prosecutors: evidence may be easily proved in civil litigation but contested in criminal contexts.

Confidentiality offences and public interest exceptions

The disclosure offences in s 26 are strict in scope and severe: up to 10 years’ imprisonment where disclosure endangers health or safety (s 26(2)). However, authorised disclosures are permitted for administration/execution of the Act, legal proceedings, or to comply with legal requirements (s 26(1)(d)(i)-(iii)). Determining the boundary between legitimate disclosure and criminal offence requires precise adherence to those exceptions; participants and counsel should document lawful disclosure pathways carefully.

Record-keeping and timing traps

Statutory deadlines and record-keeping obligations carry operational consequences: principal law enforcement officers must report within 2 months of operation completion (s 27(1)); chief officers must give annual reports after 30 July each year (s 28(1)); applicants must submit written records for urgent applications "as soon as practicable" (s 9(6); s 13(7)). Failure to meet these timelines may not automatically nullify authorisations but will impair compliance and increase exposure to oversight findings by the Ombudsman under s 31.

Compensation limits and exclusions

Compensation in s 23 applies only if property loss/serious damage is a direct result of an AFP authorised operation and is excluded if the owner suffered loss because of their own criminal activity or corrupt conduct (s 23(1)-(2)). Claimants should assess the "direct result" causal threshold and the applicability of exclusions; agencies should document operational steps to establish directness and to support decision-making about compensation.

Interaction with other investigatory laws

Section 20 excludes the Act’s protections from applying to certain investigatory powers (e.g. surveillance, searches, forensic procedures). Operators who rely solely on s 18 protections for investigatory acts that require separate statutory authorisation (e.g. telecommunications interception) risk legal exposure. Operators must ensure parallel compliance with the specific legislation that governs those investigatory techniques.

FOI and Record Act exclusions

The Act excludes records and operations from FOI and Territory Records Act coverage (s 7(5)). Parties seeking transparency should not assume FOI is available. Instead, the path to scrutiny is through the Ombudsman’s inspections and parliamentary reporting (s 31; s 28). This limits external discovery routes and may be a surprise to claimants or counsel expecting FOI access.

Pre-application and application preparation

Before applying for an authority, the applicant (a law enforcement officer) should assemble sufficient information to enable the chief officer to make the s 10(2) satisfaction on reasonable grounds: evidence a relevant offence has been, is, or is likely to be committed; justification for the operation’s scope; minimisation proposals for illicit goods; plans for accounting for controlled conduct to satisfy part 4 reporting; and assessment of proportionality and safety (s 9(4); s 10(2)(a)-(f), (h), (e), (d)).
Where delay may affect success, prepare to make an urgent application orally but ensure that a written record is made "as soon as practicable" and provided to the chief officer (s 9(2), s 9(6)). The chief officer may require additional information (s 9(5)).

Form and content of authority

Ensure the authority, once granted, contains the items required by s 11(3): identity and rank of grantor; identification of principal law enforcement officer and applicant; status as standard or urgent; identification of each person authorised to engage in controlled conduct (including code or assumed names where necessary per s 11(4)); participating jurisdictions; nature of criminal activity or corrupt conduct and relevant offences; nature of controlled conduct authorised for law enforcement and the particular controlled conduct (if any) for civilian participants; identification of suspects to the extent known; validity period (≤3 months for standard, ≤7 days for urgent) (s 11(3)(a)-(l)).
For urgent authorities, the chief officer must ensure written notes of the particulars are kept (s 11(5)). Agencies should implement formal templates and contemporaneous record practices to ensure compliance with s 11 and s 13(12)(a).

Operational constraints and participant management

Civilian participants must be assigned roles that cannot be adequately performed by law enforcement officers (s 10(2)(i)). Civilian participants must receive clear instructions and act in accordance with them to qualify for protections (s 18(d); s 19(2)(d)). Agencies should document instructions and obtain recorded acknowledgements where feasible.
Participants must not intentionally induce third parties to commit offences they would not otherwise commit, and must avoid conduct likely to cause death, serious injury, sexual offending, or unlawful serious property loss (s 10(2)(g), (h); s 18(c)). Operational planning and risk assessments must be documented.

Accounting for illicit goods and evidence handling

Authorities must state the nature and route of illicit goods to the extent known (s 11(3)(l)(i)-(ii)). Operations must be planned to limit non‑law-enforcement control of illicit goods at operation end (s 10(2)(e)). Agencies should adopt chain-of-custody procedures and inventory practices adequate to satisfy s 10(2)(f) and the reporting obligations in s 27 and s 30.

Reporting, registers and record-keeping

Principal law enforcement officers must prepare and deliver a report within 2 months of operation completion containing prescribed details (s 27(1)-(2)). Agencies must retain standard applications, authorities, amendment applications and amendments, cancellation orders and principal officer reports (s 29). The chief officer must maintain a general register capturing prescribed entries for every application, authority, amendment and operation (s 30). Implement standardised recording, secure storage and audit trails to support the Ombudsman’s inspections (s 31).

Confidentiality compliance

Train participants in the disclosure prohibitions under s 26 and document permitted disclosure channels (administration/execution of the Act; legal proceedings; compulsion by law) to avoid unauthorised disclosures. Ensure legal teams review disclosure proposals and maintain contemporaneous justifications under permitted exceptions.

Amendment and cancellation protocols

If an amendment is required (e.g. to add participants, extend validity subject to s 13 constraints), prepare the formal application (standard or urgent) with necessary information. For urgent amendment applications made orally, ensure written records are prepared and delivered as soon as practicable (s 13(5), (7)). The chief officer must prepare and provide a written amendment of authority as soon as practicable (s 13(12)(b)).

Mutual recognition and cross-jurisdiction planning

For multi-jurisdiction operations, confirm that counterpart laws are declared corresponding and understand the scope of mutual recognition under s 25. Identify participating jurisdictions in the authority (s 11(3)(e)) and verify any constraints under the corresponding law of each jurisdiction.

Compensation procedures

Where property loss or serious damage may result, anticipate the s 23 compensation mechanism: the Territory may be liable to pay compensation as agreed or, failing agreement, by court action (s 23(1)). Chief officers must report loss/damage promptly (s 24(1)) and take reasonable steps to notify owners unless notification would compromise the operation or public interest per s 24(3).

Ombudsman inspections and internal audit

Prepare for the Ombudsman’s inspections under s 31: keep records organised, ensure staff cooperation, and implement internal audits to check completeness of applications, authorities, reports and register entries. Record assistance provided to the Ombudsman to demonstrate compliance during inspections.

Delegation and decision-making authorisation

If delegations are in place, ensure they comply with s 33: delegations to senior officers must match the statutory categories (e.g. AFP commander rank, listed ACC positions, or integrity commission positions prescribed by regulation). Maintain delegation instruments and ensure delegated officers are trained on statutory criteria.

Legal review and evidentiary safeguards

Implement internal legal review of applications, authorities and operational plans to ensure s 10(2) satisfaction and to document the decision-making trail. Preserve documentary proof that the chief officer was satisfied on reasonable grounds (s 32 exceptions apply for criminal or disciplinary proceedings).

Regulatory compliance and monitoring

Monitor whether regulations have been made under s 34 that impose additional requirements (including ones affecting civil immunity under s 19(2)(e)). Adapt procedures and training accordingly.

Ministerial reporting and public interest redactions

Prepare annual reporting data for the chief officer report to the Minister (s 28). Where sensitive material is present, advise the Minister of items that should be excluded from the Legislative Assembly report on public interest grounds under s 28(7)-(8).

Practical checklist summary

Prepare comprehensive operational files before application.
Use standard templates for applications and authorities; record urgent oral decisions contemporaneously.
Ensure civilian participant roles and instructions are documented.
Maintain chain‑of‑custody and accounting for illicit goods.
Comply with reporting timelines: operation completion report (2 months) and chief officer annual report (by 30 July).
Implement confidentiality training and approval processes for disclosures.
Keep registers and records readily available for Ombudsman inspection.
Verify delegation instruments are compliant with s 33 and regulatory instruments under s 34.

This is a source-grounded compliance outline: follow the Act’s text (s 9-15; s 18-19; s 23-31; s 33-34) and the dictionary definitions to operationalise controlled operations within the statutory constraints.

Crimes (Controlled Operations) Act 2008

Plain English Summary

Deep Dive

What it does

Current sections

Crimes (Controlled Operations) Act 2008

Source text: opening excerpt

Main concepts

Who it affects

Key duties and rights

Penalties and enforcement

How it interacts with other laws

Amendment history

Litigation history

Gotchas

How to comply