Criminal Investigation (Covert Operations) Act 2009 (South Australia)

This Act authorises and regulates three linked covert-law enforcement tools: approved undercover operations, the acquisition and use of assumed identities, and witness identity protection certificates. It sets decision‑making gates and documentary requirements for approvals and authorities, creates legal immunities and indemnities for specified actors when acting within those instruments, prescribes offences for misuse and unauthorised disclosure, and provides procedural rules for courts when protected operatives give evidence. The Act also creates a framework for cross‑jurisdictional recognition of corresponding approvals, authorities and certificates and limits public disclosure of information created under its operation (s4, Pt 3, Pt 4, Pt 5, s46).

Mechanically, the Act:

Authorises senior police officers, and in specified corruption investigations the Independent Commissioner Against Corruption, to give written approvals for undercover operations that last up to three months and may be renewed (s4(1), (4), (5)). Approvals must satisfy threshold criteria including reasonable suspicion of serious criminal behaviour, proportionality and a specific non‑encouragement test (s4(2)(a)-(d)).
Permits a law enforcement officer to apply for an authority to acquire or use an assumed identity for a named person; if granted the authority must be in writing and specify the identity, issuing agencies, conditions and (for civilians) a period not exceeding three months (s6-9).
Enables courts to make closed orders to insert assumed‑identity entries in birth, death and marriage registers where justified; requires cancellation orders on authority cancellation (s12-13).
Provides for issuing agencies to produce evidence of assumed identities when requested; government issuing agencies must comply, non‑government issuing agencies may comply; indemnities and immunity apply to officers who comply (s14-17).

South Australia Criminal Investigation (Covert Operations) Act 2009 An Act to authorise the use of undercover operations and assumed identities for the purposes of criminal investigation and the gathering of criminal intelligence within and outside the State; to establish a certification scheme for the protection of the identity of certain witnesses; to provide for cross border recognition of undercover operations, assumed identities and the certification scheme; and for other purposes.

Contents Part 1—Preliminary 1 Short title 3 Interpretation Part 2—Undercover operations 4 Approval of undercover operations 5 Legal immunity of persons taking part in approved undercover operations Part 3—Assumed identities Division 1—Authority to acquire or use assumed identity 6 Application for authority 7 Determination of applications 8 Form of authority 9 Period of authority 10 Variation or cancellation of authority 11 Yearly review of authority 12 Making entries in register of births, deaths and marriages 13 Cancellation of authority affecting entry in register of births, deaths and marriages Division 2—Evidence of assumed identity 14 Request for evidence of assumed identity 15 Cancellation of evidence of assumed identity 16 Legal immunity of officers of issuing agencies 17 Indemnity for issuing agencies and officers Division 3—Effect of authority 18 Assumed identity may be acquired and used 19 Legal immunity of authorised persons acting under authority 20 Indemnity for authorised persons 21 Particular qualifications 22 Effect of being unaware of variation or cancellation of authority Division 4—Mutual recognition 23 Requests to participating jurisdiction for evidence of assumed identity 24 Requests from participating jurisdiction for evidence of assumed identity Division 5—Compliance and monitoring 25 Misuse of assumed identity 26 Disclosing information about assumed identity 27 Record keeping 28 Audit of records Division 6—Delegation 29 Delegation Part 4—Witness identity protection Division 1—Interpretation 30 Interpretation Division 2—Witness identity protection certificates for local operatives 31 Chief officer may give witness identity protection certificate to local operative 32 Protection of decision to give witness identity protection certificate 33 Form of witness identity protection certificate 34 Cancellation of witness identity protection certificate 35 Permission to give information disclosing operative's identity etc Division 3—Use of witness identity protection certificates in proceedings 36 Application and interpretation of Division 37 Filing and effect of filing of witness identity protection certificate in court 38 Orders to protect operative's identity etc 39 Directions to jury 40 Application for disclosure of operative's identity etc in proceedings 41 Offences Division 4—Delegation 42 Delegation Part 5—Application of Act to approvals, authorities or certificates under corresponding laws 43 Application of Act to approvals under corresponding laws 44 Application of Act to authorities under corresponding laws 45 Application of Act to witness identity protection certificates under corresponding laws Part 6—Miscellaneous 46 State Records Act 1997 and Freedom of Information Act 1991 not to apply 47 Annual report 48 Regulations Schedule 1—Transitional provisions Part 1—Interpretation 1 Interpretation Part 3—Transitional provisions 3 Approved undercover operations 4 Assumed identities 5 Witness identity protection Legislative history

The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited as the Criminal Investigation (Covert Operations) Act 2009. 3—Interpretation (1) In this Act, unless the contrary intention appears— acquire an assumed identity, means acquire evidence of the identity, and includes taking steps towards acquiring evidence of the identity; agency means— (a) an issuing agency; or (b) a law enforcement agency, as the case requires; approval means an approval under Part 2; approved undercover operations means— (a) undercover operations approved under Part 2; or (b) undercover operations approved— (i) under the repealed Act; or (ii) by a law enforcement authority before the commencement of the repealed Act that are of a type that could reasonably have been approved under the repealed Act if the repealed Act had been in force when the operations commenced; assumed identity—see Part 3; assumed name— (a) of a local operative—has the meaning given in section 33(1)(d)(i); (b) of an interstate operative—means the name (if any) stated in the interstate witness identity protection certificate as the interstate operative's assumed name; authorised civilian means a person (other than a law enforcement officer) who is authorised under an authority to acquire or use an assumed identity; authorised officer means a law enforcement officer who is authorised under an authority to acquire or use an assumed identity; authorised participant in approved undercover operations means— (a) a person authorised under the terms of the approval to take part in the operations; or (b) in the case of operations that began before the commencement of Part 2 but after the commencement of the repealed Act—a person authorised under the terms of an approval under the repealed Act to take part in the operations; or (c) in the case of operations that began before the commencement of the repealed Act—a person authorised by a law enforcement authority to take part in the operations; authorised person means— (a) an authorised civilian; or (b) an authorised officer; authority means an authority under Part 3; chief officer— (a) of a law enforcement agency— (i) in relation to SA Police—means the Commissioner of Police; (ii) in relation to the Australian Crime Commission—means the Chief Executive Officer of the Australian Crime Commission; (iii) in relation to the Independent Commission Against Corruption—means the Independent Commissioner Against Corruption; (b) of an issuing agency—means the chief executive officer (however described) of the agency; conduct includes any act or omission; corresponding approval means an approval under a corresponding law approving undercover operations; corresponding authority means— (a) an authority under a corresponding law to acquire or use an assumed identity in this State; or (b) an authority under a corresponding law to request the production of evidence of an assumed identity; corresponding law means a law of another jurisdiction declared by the regulations to correspond to this Act, or to a Part (or Parts) of this Act; court includes a tribunal or body or person invested by law with judicial or quasi‑judicial powers, or with authority to make an inquiry or to receive evidence; court name for an operative (whether a local or an interstate operative) in relation to proceedings, means a name, other than the operative's real name, or code used to identify the operative in the proceedings; criminal activity means conduct that involves the commission of an offence by 1 or more persons; doing a thing includes failing to do the thing; evidence of identity, means a document or other thing that evidences or indicates, or can be used to evidence or indicate, a person's identity or an aspect of a person's identity; false representation does not include a representation made under an authority under this Act; government issuing agency, in relation to an authority, means any of the following named in the authority that issues evidence of identity: (a) a person or body (whether incorporated or not) that performs any function of the government of this State; (b) a person or body (whether incorporated or not) prescribed by the regulations for the purposes of this definition; interstate operative means a person in respect of whom an interstate witness identity protection certificate is in force; interstate witness identity protection certificate means a certificate given under a provision of a corresponding law that corresponds to section 31; investigation means an investigation in relation to criminal activity, including an investigation extending beyond this State; issuing agency means— (a) a government issuing agency; or (b) a non-government issuing agency; jurisdiction means the Commonwealth or a State or Territory of the Commonwealth; law enforcement agency means— (a) SA Police; or (b) the Australian Crime Commission; or (c) the Independent Commission Against Corruption; law enforcement officer means— (a) in relation to SA Police—a police officer or a police officer (however described) of another jurisdiction seconded to SA Police; or (b) in relation to the Australian Crime Commission—a member of staff of the Australian Crime Commission or a person seconded to the Australian Crime Commission; or (c) in relation to the Independent Commission Against Corruption—an investigator under the Independent Commission Against Corruption Act 2012; local operative means a person who is or was— (a) an authorised participant under Part 2; or (b) an authorised person under Part 3; non-government issuing agency, in relation to an authority, means a person, body or entity (other than a government issuing agency) named in the authority that issues evidence of identity; officer of an agency includes a person employed or engaged in the agency; operative means— (a) an interstate operative; or (b) a local operative, as the case requires; participating jurisdiction means a jurisdiction in which a corresponding law is in force; party to proceedings means— (a) in relation to criminal proceedings—the prosecutor and each accused person; (b) in relation to civil proceedings—each person who is a party to the proceedings; (c) in relation to any other proceedings—each person who may appear or give evidence in the proceedings; presiding officer, in relation to proceedings, means the person constituting the court, or presiding over the court, in the proceedings; proceedings means any criminal, civil or other proceeding or inquiry, reference or examination in which, by law or consent of parties, evidence is or may be given, and includes an arbitration; professional misconduct means misconduct or a breach of discipline— (a) under the Police Act 1998; or (b) under a law of another jurisdiction that corresponds to the Police Act 1998; or (c) under a law of the Commonwealth that governs the conduct of members of staff of the Australian Crime Commission, but does not mean misconduct or a breach of discipline— (d) that constitutes minor misconduct, or is the subject of an informal inquiry only, under the Police Act 1998; or (e) that constitutes minor misconduct (however referred to), or is the subject of an informal inquiry only, under any of the laws referred to in paragraph (b) or (c); repealed Act means the Criminal Law (Undercover Operations) Act 1995 repealed under Schedule 1; SA Police means South Australia Police; serious criminal behaviour means behaviour involving the commission of— (a) an indictable offence; or (b) an offence against the Controlled Substances Act 1984; or (c) an offence against section 52, 53, 72 or 74 of the Fisheries Management Act 2007; or (ca) an offence against section 29 of the Liquor Licensing Act 1997; or (d) an offence against section 63 or 75 of the Lottery and Gaming Act 1936; or (e) an offence against section 47(1), (2) or (4), 48(1), 48A(1), 51(1) or 60(1) of the National Parks and Wildlife Act 1972; or (f) an offence against section 21OB or 21OC of the Summary Offences Act 1953; supervisor of an authorised civilian means the law enforcement officer who supervises, or is to supervise, the acquisition or use of an assumed identity by the authorised civilian; undercover operations means operations (which may include conduct that is apart from this Act illegal) of which the intended purpose is to provide persons who have engaged, are engaging or are about to engage in serious criminal behaviour an opportunity to— (a) manifest that behaviour; or (b) provide other evidence of that behaviour; use an assumed identity, includes representing (whether expressly or impliedly, or by saying or doing something) the identity to be real when it is not; witness identity protection certificate means a certificate given under section 31 in respect of a local operative in relation to proceedings. (2) For the purposes of this Act, a person is reckless about whether or not an act has been done if— (a) the person is aware of a substantial risk that the act has been done; and (b) having regard to the circumstances known to the person, it is unjustifiable to take the risk. Part 2—Undercover operations 4—Approval of undercover operations (1) A senior police officer may approve undercover operations for the purpose of gathering evidence of serious criminal behaviour. (1a) An investigator under the Independent Commission Against Corruption Act 2012 may apply to the Independent Commissioner Against Corruption to approve undercover operations for the purpose of an investigation into corruption in public administration under that Act where the suspected corruption involves, or may involve, serious criminal behaviour. (2) An approval may not be given unless the senior police officer or the Independent Commissioner Against Corruption (as the case may be)— (a) suspects, on reasonable grounds, that persons (whose identity may—but need not—be known to the officer) have engaged, are engaging or are about to engage in serious criminal behaviour of the kind to which the proposed undercover operations relate; and (b) is satisfied on reasonable grounds that the ambit of the proposed undercover operations is not more extensive than could reasonably be justified in view of the nature and extent of the suspected serious criminal behaviour; and (c) is satisfied on reasonable grounds that the means are proportionate to the end; that is, that the proposed undercover operations are justified by the social harm of the serious criminal behaviour against which they are directed; and (d) is satisfied on reasonable grounds that the undercover operations are properly designed to provide persons who have engaged, or are engaging or about to engage, in serious criminal behaviour an opportunity— (i) to manifest that behaviour; or (ii) to provide other evidence of that behaviour, without undue risk that persons without a predisposition to serious criminal behaviour will be encouraged into serious criminal behaviour that they would otherwise have avoided. (3) Before giving approval, the senior police officer or the Independent Commissioner Against Corruption (as the case may be) must consider whether approval for similar operations has previously been sought, and, if sought and refused, the reasons for that refusal. (4) The approval must— (a) be in writing; and (b) be signed by the person giving the approval; and (c) specify— (i) the date and time of the signing, and the time from which the approval takes effect (which may be contemporaneous with or later than the time of signing but cannot be earlier); and (ii) the persons who are authorised to participate in the operations; and (iii) the nature of the conduct in which the participants are authorised to engage; and (iv) a period (not exceeding 3 months) for which the approval is given. (5) A senior police officer or the Independent Commissioner Against Corruption (as the case may be) may renew, from time to time, an approval for 1 or more further periods. (6) A senior police officer or the Independent Commissioner Against Corruption (as the case may be) must, within 14 days after giving or renewing an approval, cause a copy of the instrument of approval or renewal to be given to the Attorney‑General. (7) In this section— senior police officer means a police officer of or above the rank of Superintendent. 5—Legal immunity of persons taking part in approved undercover operations (1) Despite any other law, an authorised participant in approved undercover operations incurs no criminal liability by taking part in undercover operations in accordance with the terms of the approval. (2) This section operates both prospectively and retrospectively. Part 3—Assumed identities Division 1—Authority to acquire or use assumed identity 6—Application for authority (1) A law enforcement officer of a law enforcement agency may apply to the chief officer of the law enforcement agency for an authority for the law enforcement officer, or another person, to do either or both of the following: (a) acquire an assumed identity; (b) use an assumed identity. (2) A separate application must be made in respect of each assumed identity to be acquired or used. (3) An application— (a) must be in writing in the form approved by the chief officer; and (b) must contain the following information: (i) the name of the applicant; (ii) the name of the person to be authorised to acquire or use an assumed identity (if not the applicant); (iii) if the person to be authorised is not a law enforcement officer—the name and rank or position of the person proposed to be appointed as supervisor and an explanation of why it is necessary for a person who is not a law enforcement officer to acquire or use the assumed identity; (iv) details of the proposed assumed identity; (v) reasons for the need to acquire or use an assumed identity; (vi) to the extent known—details of the investigation or intelligence gathering exercise in which the assumed identity will be used; (vii) details of the issuing agencies (if any) and the types of evidence to be issued by them; (viii) details of any application to be made for an order under section 12 in respect of the assumed identity. (4) An applicant must provide the chief officer with any other information required by the chief officer for the purposes of determining the application. 7—Determination of applications (1) The chief officer of a law enforcement agency may, on application under section 6 for an authority, grant the authority subject to such conditions as the chief officer thinks fit. (2) The chief officer may not grant any such authority unless satisfied on reasonable grounds— (a) that the assumed identity is necessary for the purposes of an investigation or intelligence gathering in relation to criminal activity; and (b) that the risk of abuse of the assumed identity by the authorised person is minimal; and (c) if the application is for authorisation of an assumed identity for a person who is not a law enforcement officer—that it would be impossible or impracticable in the circumstances to authorise the acquisition or use (or both) of the assumed identity by a law enforcement officer for the purpose sought. (3) If an authority is granted in respect of an authorised civilian, the chief officer must appoint a law enforcement officer of the agency to supervise the acquisition or use (or both) of the assumed identity by the authorised civilian. (4) A law enforcement officer appointed as supervisor under subsection (3) must be— (a) in the case of SA Police—of or above the rank of Sergeant; (b) in the case of the Australian Crime Commission—of or above the rank of Senior Investigator. (5) An authority may also authorise any 1 or more of the following: (a) an application for an order for an entry in a register of births, deaths or marriages under section 12 or a corresponding law; (b) a request under section 14 or 23; (c) the use of an assumed identity in a participating jurisdiction. (6) A separate authority is required for each assumed identity. 8—Form of authority An authority must— (a) be in writing in the form approved by the chief officer of the law enforcement agency granting the authority; and (b) be signed by the person granting the authority; and (c) specify— (i) the name of the person granting the authority; (ii) the date on which the authority comes into effect; (iii) details of the assumed identity authorised; (iv) details of evidence of the assumed identity that may be acquired under the authority; (v) the conditions (if any) to which the authority is subject; (vi) the reason why the authority is granted; (vii) if the authority relates to an authorised officer—the name of the authorised officer; (viii) if the authority relates to an authorised civilian— (A) the name of the authorised civilian; and (B) the name of his or her supervisor under the authority; and (C) the period (which may not exceed 3 months) for which the authority will remain in force; (ix) each issuing agency to which a request may be made under section 14 or 23; (x) whether it authorises an application for an order for an entry in a register of births, deaths or marriages under section 12 or a corresponding law; (xi) each participating jurisdiction in which the assumed identity may be used. 9—Period of authority (1) An authority for an authorised officer remains in force until cancelled. (2) An authority for an authorised civilian remains in force until the end of the period specified in the authority (which may not exceed 3 months), unless the authority is cancelled sooner. 10—Variation or cancellation of authority (1) The chief officer of a law enforcement agency who grants an authority— (a) may vary or cancel the authority at any time; and (b) must cancel the authority if satisfied (on a review or otherwise) that any of the grounds for the granting of the authority no longer exist. (2) The chief officer must give written notice of the variation or cancellation to— (a) the authorised person to whom it relates; and (b) if the authorised person is an authorised civilian—the authorised person's supervisor. (3) The notice must specify the reason why the authority is varied or cancelled. (4) The variation or cancellation takes effect— (a) on the day the written notice is given to the authorised person; or (b) if a later date is specified in the notice—on that day. 11—Yearly review of authority (1) The chief officer of a law enforcement agency must, at least once in every 12 month period, review each authority granted under this Part. (2) The purpose of a review is to determine whether the grounds for the granting of the authority still exist. (3) If on a review the chief officer is satisfied— (a) that the grounds for the granting of the authority still exist—the chief officer must record his or her opinion and the reasons for it in writing; (b) that any of the grounds for the granting of the authority no longer exist—the chief officer must cancel the authority under section 10. 12—Making entries in register of births, deaths and marriages (1) The Supreme Court may order the Registrar of Births, Deaths and Marriages to make an entry in the Register under the Births, Deaths and Marriages Registration Act 1996 in relation to the acquisition of an assumed identity under an authority or corresponding authority. (2) The Court may only make an order under this section— (a) on application by— (i) the chief officer of a law enforcement agency; or (ii) the chief officer of a law enforcement agency under a corresponding law; and (b) if satisfied that the order is justified having regard to the nature of the activities undertaken or to be undertaken by the officer or person under the authority or corresponding authority. (3) An application for an order under this section must be heard in closed court. (4) The Registrar of Births, Deaths and Marriages must give effect to an order under this section— (a) within the period specified in the order; or (b) if no period is specified in the order—within 28 days after the day on which the order is made. 13—Cancellation of authority affecting entry in register of births, deaths and marriages (1) This section applies if— (a) the chief officer of a law enforcement agency cancels an authority for an assumed identity; and (b) there is an entry in relation to that identity— (i) in the Register under the Births, Deaths and Marriages Registration Act 1996 as a consequence of an order under section 12; or (ii) in a register of births, deaths or marriages in a participating jurisdiction as a consequence of an order under a corresponding law of the jurisdiction. (2) If subsection (1)(b)(i) applies— (a) the chief officer must, within 28 days after the day on which the authority is cancelled, apply to the Supreme Court for an order that the Registrar of Births, Deaths and Marriages cancel the entry; and (b) the Registrar of Births, Deaths and Marriages must give effect to the order within 28 days after the day on which the order is made. (3) An application under subsection (2)(a) must be heard in closed court. (4) If subsection (1)(b)(ii) applies, the chief officer must apply for an order under the corresponding law to cancel the entry within 28 days after the day on which the authority is cancelled. Division 2—Evidence of assumed identity 14—Request for evidence of assumed identity (1) Subject to this section, the chief officer of a law enforcement agency who grants an authority under this Part may request the chief officer of an issuing agency specified in the authority— (a) to produce evidence of an assumed identity in accordance with the authority; and (b) to provide the authorised person named in the authority with evidence of the assumed identity. (2) A request under this section must specify a reasonable period for compliance with the request. (3) The chief officer of— (a) a government issuing agency must comply with a request under this section within the period specified in the request; (b) a non-government issuing agency may comply with a request under this section. (4) A request cannot be made under this section for an entry in the Register under the Births, Deaths and Marriages Registration Act 1996. (5) In this section— evidence means evidence similar to that ordinarily produced or given by the issuing authority. 15—Cancellation of evidence of assumed identity (1) The chief officer of an issuing agency must cancel evidence of an assumed identity produced by the agency if directed in writing to do so by the chief officer for the time being of the law enforcement agency that requested the evidence be produced. (2) In this section— cancel includes delete or alter an entry in a record of information. 16—Legal immunity of officers of issuing agencies The chief officer or any other officer of an issuing agency (whether government or non‑government) who does something that, apart from this section, would be an offence, is not criminally responsible for the offence if the thing is done to comply with a request under this Division. 17—Indemnity for issuing agencies and officers Where the chief officer of a law enforcement agency makes a request or gives a direction under this Division to the chief officer of an issuing agency (whether government or non‑government), the law enforcement agency must indemnify the issuing agency, or an officer of the agency, for any liability incurred by the agency or officer (including reasonable costs) if— (a) the liability is incurred because of something done by the agency or officer to comply with the request or direction in the course of duty; and (b) the requirements (if any) prescribed by the regulations have been met. Division 3—Effect of authority 18—Assumed identity may be acquired and used (1) An authorised officer may acquire or use (or acquire and use) an assumed identity if the acquisition or use (or acquisition and use) is— (a) in accordance with an authority; and (b) in the course of duty. (2) An authorised civilian may acquire or use (or acquire and use) an assumed identity if the acquisition or use (or acquisition and use) is in accordance with— (a) an authority; and (b) any direction by the person's supervisor under the authority. 19—Legal immunity of authorised persons acting under authority Where an authorised person does something (whether in this State or elsewhere) that, apart from this section, would be an offence, the officer or person is not criminally responsible for the offence if— (a) the act is done in the course of acquiring or using an assumed identity in accordance with an authority; and (b) the act is done— (i) in the case of an authorised officer—in the course of his or her duty; or (ii) in the case of an authorised civilian—in accordance with any direction by his or her supervisor under the authority; and (c) doing the act would not be an offence if the assumed identity were the person's real identity. 20—Indemnity for authorised persons Where the chief officer of a law enforcement agency grants an authority, the law enforcement agency must indemnify the authorised person under the authority for any liability incurred by the person (including reasonable costs) because of something done by the person (whether in this State or elsewhere) if— (a) the act is done in the course of acquiring or using an assumed identity in accordance with the authority; and (b) the act is done— (i) in the case of an authorised officer—in the course of his or her duty; or (ii) in the case of an authorised civilian—in accordance with any direction by his or her supervisor under the authority; and (c) the requirements (if any) prescribed by the regulations have been met. 21—Particular qualifications (1) Sections 19 and 20 do not apply to anything done by an authorised person if— (a) a particular qualification is needed to do the thing; and (b) the person does not have that qualification. (2) This section applies whether or not the person has acquired as evidence of an assumed identity a document indicating that he or she has that qualification. 22—Effect of being unaware of variation or cancellation of authority (1) If an authority has been varied in a way that limits its scope, this Division continues to apply to the authorised person to whom it relates as if it had not been so varied for as long as the person— (a) is unaware of the variation; and (b) is not reckless about the existence of the variation. (2) If an authority has been cancelled, this Division continues to apply to the authorised person to whom it related as if it had not been cancelled for as long as the person— (a) is unaware of the cancellation; and (b) is not reckless about the existence of the cancellation. Division 4—Mutual recognition 23—Requests to participating jurisdiction for evidence of assumed identity (1) The chief officer of a law enforcement agency granting an authority may, if the authority authorises a request under this section, request the chief officer of an issuing agency of a participating jurisdiction specified in the authority— (a) to produce evidence of the assumed identity in accordance with the authority; and (b) to give evidence of the assumed identity to the authorised person named in the authority. (2) If the chief officer of a law enforcement agency makes a request to the chief officer of an issuing agency of a participating jurisdiction under this section, the law enforcement agency must indemnify the issuing agency, and any officer of the issuing agency, for any liability incurred by the agency or officer (including reasonable costs) if— (a) the liability is incurred because of something done (whether in this State or elsewhere) by the agency or officer to comply with the request in the course of duty; and (b) the requirements (if any) prescribed by the regulations have been met. 24—Requests from participating jurisdiction for evidence of assumed identity (1) This section applies if— (a) an authority under a corresponding law authorises a request— (i) to produce evidence of an assumed identity in this State; and (ii) to provide evidence of the assumed identity to the authorised person named in the authority; and (b) the request is made to the chief officer of an issuing agency in this State; and (c) the request specifies a reasonable period for compliance with the request. (2) The chief officer of an issuing agency— (a) in the case of a government issuing agency—must comply with any such request within the period specified in the request; (b) in the case of a non‑government issuing agency—may comply with any such request. (3) The chief officer of an issuing agency that produces evidence of an assumed identity as the result of a request under this section must cancel the evidence if directed in writing to do so by the chief officer for the time being of the law enforcement agency that requested the evidence be produced. (4) In this section— cancel includes delete or alter an entry in a record of information. Division 5—Compliance and monitoring 25—Misuse of assumed identity (1) An authorised officer is guilty of an offence if— (a) he or she intentionally, knowingly or recklessly acquires evidence of, or uses, an assumed identity covered by his or her authority; and (b) he or she knows that, or is reckless as to whether, the acquisition or use is not— (i) in accordance with his or her authority; or (ii) in the course of duty. Maximum penalty: Imprisonment for 2 years. (2) An authorised civilian is guilty of an offence if— (a) he or she intentionally, knowingly or recklessly acquires evidence of, or uses, an assumed identity covered by his or her authority; and (b) he or she knows that, or is reckless as to whether, the acquisition or use is not in accordance with— (i) his or her authority; or (ii) the directions of his or her supervisor under the authority. Maximum penalty: Imprisonment for 2 years. 26—Disclosing information about assumed identity (1) A person is guilty of an offence if— (a) the person intentionally, knowingly or recklessly discloses information that the person knows or is reckless as to whether it reveals, or is likely to reveal, that an assumed identity acquired or used by another person is not the other person's real identity; and (b) the person knows, or is reckless as to whether, 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 proceedings arising out of or otherwise related to this Act or a corresponding law or of a report of any such proceedings; or (iii) in accordance with any requirement imposed by law. Maximum penalty: Imprisonment for 2 years. (2) A person is guilty of an offence against this subsection if the person commits an offence against subsection (1) in circumstances in which— (a) the person intends to endanger the health or safety of another or prejudice the effective conduct of an investigation or intelligence gathering in relation to criminal activity; or (b) the person knows, or is reckless as to whether, the disclosure of the information— (i) endangers or will endanger the health or safety of another; or (ii) prejudices or will prejudice the effective conduct of an investigation or intelligence gathering in relation to criminal activity. Maximum penalty: Imprisonment for 10 years. 27—Record keeping (1) The chief officer of a law enforcement agency must cause appropriate records to be kept about the operation of this Part in respect of the agency. (2) For the purposes of subsection (1), the records of the agency must include the following information in respect of each authority granted, varied or cancelled under this Part: (a) the date on which the authority was granted, varied or cancelled and the name of the person who granted, varied or cancelled the authority; (b) the name of the authorised person under the authority, together with details of the assumed identity to which the authority applies; (c) details of any request made to an issuing agency under section 14 in respect of the authority; (d) the general nature of the duties undertaken by the authorised person under the assumed identity; (e) general details of relevant financial transactions entered into using the assumed identity; (f) details of the annual reviews of the authority. 28—Audit of records (1) The chief officer of a law enforcement agency must arrange for the records kept for each authority in respect of the agency to be audited— (a) at least once every 6 months while the authority is in force; and (b) at least once in the 6 months following the cancellation or expiry of the authority. (2) An audit must be conducted by a person appointed by the chief officer. (3) The person appointed to conduct an audit— (a) may but need not be an officer of the law enforcement agency; (b) must not be a person— (i) who granted, varied or cancelled any of the authorities to which the records relate; or (ii) who is or was an authorised person under any of the authorities to which the records relate. (4) The results of an audit are to be reported to the chief officer. Division 6—Delegation 29—Delegation (1) Despite any other Act or law to the contrary, the functions of a chief officer of a law enforcement agency under this Part may not be delegated to any other person except as provided by this section. (2) A chief officer of a law enforcement agency may delegate to a senior officer of the agency any of the chief officer's functions under this Part. (3) No more than 4 delegations may be in force under this section at any 1 time in respect of any 1 law enforcement agency. (4) In this section— senior officer means— (a) in relation to SA Police—a police officer of or above the rank of Superintendent; (b) in relation to the Australian Crime Commission— (i) the Director National Operations; or (ii) a Director; or (iii) the General Manager National Operations; or (iv) a member of staff of the Australian Crime Commission who is an SES employee or acting SES employee (within the meaning of the Australian Crime Commission Act 2002 of the Commonwealth) and who holds a position that is prescribed by the regulations for the purposes of this definition. Part 4—Witness identity protection Division 1—Interpretation 30—Interpretation For the purposes of this Part— (a) a charge against a person for an offence is outstanding until the charge is finally dealt with in any of the following ways: (i) the charge is withdrawn; (ii) the charge is dismissed by a court; (iii) the person is discharged by a court following committal proceedings; (iv) the person is acquitted or found guilty of the offence; (v) the person is declared under Part 8A of the Criminal Law Consolidation Act 1935 to be liable to supervision; (vi) in any other case—when proceedings relating to the charge are otherwise concluded or terminated; and (b) anything permitted to be done by a party to proceedings may be done by the party's lawyer; and (c) any requirement to give something to a party to proceedings is satisfied by giving the thing to the party's lawyer. Division 2—Witness identity protection certificates for local operatives 31—Chief officer may give witness identity protection certificate to local operative (1) The chief officer of a law enforcement agency may give a certificate in respect of a local operative in relation to proceedings (a witness identity protection certificate) if— (a) the local operative is, or may be, required to give evidence in the proceedings; and (b) the chief officer is satisfied on reasonable grounds that the disclosure in the proceedings of the local operative's identity or where the local operative lives is likely— (i) to endanger the safety of the local operative or another person; or (ii) to prejudice an investigation. (2) The chief officer may not give a witness identity protection certificate in respect of the local operative until the chief officer has received the following information from the local operative verified by statutory declaration: (a) whether he or she has ever been convicted or found guilty of an offence (in this State or elsewhere) and, if so, particulars of each offence; (b) whether any charges against the local operative for an offence are pending or outstanding (in this State or elsewhere) and, if so, particulars of each charge; (c) if the local operative is or was a law enforcement officer— (i) whether he or she has ever been found guilty of professional misconduct and, if so, particulars of each finding; and (ii) whether to his or her knowledge any allegations of professional misconduct against him or her are outstanding and, if so, particulars of each allegation; (d) whether to the local operative's knowledge a court (in this State or elsewhere) has ever made any adverse comment about his or her credibility and, if so, particulars of the comment; (e) whether the local operative has ever made a false representation when the truth was required and, if so, particulars of the representation; (f) particulars of anything else known to the local operative that may be relevant to his or her credibility. (3) A person cannot be compelled to disclose or produce a statutory declaration made under this section in any proceedings. (4) However, subsection (3) does not apply to— (a) proceedings for perjury or otherwise in respect of the falsity of the statutory declaration; or (b) proceedings of a disciplinary nature against a law enforcement officer; or (c) investigations or inquiries by a person or body in any jurisdiction having jurisdiction to investigate or inquire into the conduct of a law enforcement officer. (5) The chief officer must make all reasonable enquiries to enable him or her to ascertain the information required to be included in the certificate under this Part. 32—Protection of decision to give witness identity protection certificate (1) A decision to give a witness identity protection certificate— (a) is final; and (b) cannot be appealed against, reviewed, called into question, quashed or invalidated in any court. (2) Subsection (1) does not prevent a decision to give a witness identity protection certificate from being called into question in the course of any proceedings of a disciplinary nature against the person who made the decision. 33—Form of witness identity protection certificate (1) The chief officer of a law enforcement agency must ensure that a witness identity protection certificate given in respect of a local operative in relation to proceedings includes the following information: (a) the name of the law enforcement agency of which he or she is the chief officer; (b) the date on which the certificate is given; (c) the grounds for giving the certificate; (d) if the local operative— (i) is known to a party to the proceedings or a party's lawyer by a name other than the local operative's real name—that name (the assumed name); or (ii) is not known to any party to the proceedings or any party's lawyer by a name—the local operative's court name for the proceedings; (e) the period during which the local operative was involved in the investigation to which the proceedings relate; (f) whether the local operative has ever been convicted or found guilty of an offence (in this State or elsewhere) and, if so, particulars of each offence; (g) whether any charges against the local operative for an offence are pending or outstanding (in this State or elsewhere) and, if so, particulars of each charge; (h) if the local operative is or was a law enforcement officer— (i) whether the local operative has ever been found guilty of professional misconduct and, if so, particulars of each finding; and (ii) whether to the local operative's knowledge any allegations of professional misconduct against him or her are outstanding and, if so, particulars of each allegation; (i) whether, to the knowledge of the person giving the certificate, a court (in this State or elsewhere) has ever made any adverse comment about the local operative's credibility and, if so, particulars of the comment; (j) whether, to the knowledge of the person giving the certificate, the local operative has ever made a false representation when the truth was required and, if so, particulars of the representation; (k) if there is anything else known to the person giving the certificate that may be relevant to the local operative's credibility, particulars of the thing. (2) A witness identity protection certificate must not contain information that may allow the local operative's identity, or where the local operative lives, to be revealed. 34—Cancellation of witness identity protection certificate (1) If, in relation to proceedings, the chief officer of a law enforcement agency considers that it is no longer necessary or appropriate to prevent the disclosure of the identity of a local operative or where he or she lives, the chief officer may cancel a witness identity protection certificate in respect of the local operative. (2) If a witness identity protection certificate is cancelled after it has been filed in court under section 37, the chief officer must immediately give written notice to the court and each party to the proceedings that the certificate has been cancelled. 35—Permission to give information disclosing operative's identity etc (1) Where the chief officer of a law enforcement agency gives a witness identity protection certificate in respect of a local operative in relation to proceedings, the chief officer may, if he or she considers it necessary or appropriate for information that discloses, or may lead to the disclosure of, the local operative's identity or where he or she lives to be given otherwise than in the proceedings, give written permission to a person to give the information. (2) The permission— (a) must— (i) identify the person who may give the information; and (ii) identify the person to whom the information may be given; and (iii) specify the information that may be given; and (b) may specify how the information may be given. Division 3—Use of witness identity protection certificates in proceedings 36—Application and interpretation of Division (1) This Division applies to proceedings in this State in which an operative is, or may be, required to give evidence obtained as an operative. (2) To remove any doubt, this Division does not affect the operation of the common law in relation to the protection of the identity of a person who is not an operative who gives or intends to give evidence in proceedings in this State. (3) In this Division— witness identity protection certificate means— (a) a witness identity protection certificate given in respect of a local operative; or (b) an interstate witness identity protection certificate, as the case requires. 37—Filing and effect of filing of witness identity protection certificate in court (1) A witness identity protection certificate for an operative in relation to proceedings in this State must be filed in court before the operative gives evidence in the proceedings. (2) A person who files a witness identity protection certificate in court under this section must serve a copy of the certificate— (a) on each party to the proceedings at least 14 days (or such shorter period as may be agreed by the parties) before the day on which the operative is to give evidence; and (b) by order of the court—on any other person specified in the order. (3) If— (a) a witness identity protection certificate given in respect of an operative is filed under this section; and (b) either— (i) a copy of the certificate is served in accordance with this section; or (ii) the court gives permission for this section to apply despite non‑compliance with this section, then— (c) the operative may give evidence in the proceedings under the assumed name, or court name, specified in the certificate; and (d) subject to this Division— (i) a question must not be asked of a witness (including the operative) that may lead to the disclosure of the operative's identity or where the operative lives; and (ii) a witness (including the operative) cannot be required to (and must not) answer a question, give evidence or provide information that discloses, or may lead to the disclosure of, the operative's identity or where the operative lives; and (iii) a person involved in the proceedings must not make a statement that discloses, or may lead to the disclosure of, the operative's identity or where the operative lives. (4) The presiding officer in proceedings in a court in which a witness identity protection certificate in respect of an operative has been filed may require the operative— (a) to disclose his or her true identity to the presiding officer; and (b) to provide the presiding officer with photographic evidence of that identity. (5) For the purposes of this section, a person involved in proceedings includes— (a) the court; and (b) a party to the proceedings; and (c) a person given permission to be heard or make submissions in the proceedings; and (d) a lawyer representing a person referred to in paragraph (b) or (c) or a lawyer assisting the court in the proceedings; and (e) any other officer of the court or person assisting the court in the proceedings; and (f) a person acting in the execution of any process or the enforcement of any order in the proceedings. 38—Orders to protect operative's identity etc (1) The court in which a witness identity protection certificate is filed may make any order it considers necessary or desirable to protect the identity of the operative in respect of whom the certificate has been filed or to prevent the disclosure of where the operative lives. (2) A person is guilty of an offence if— (a) the person knows, or is reckless as to whether, an order has been made under this section; and (b) the person intentionally, knowingly or recklessly contravenes the order. Maximum penalty: Imprisonment for 2 years. (3) Subsection (2) does not limit the court's power to punish for contempt. 39—Directions to jury Subject to section 40(4)(b), if an operative in respect of whom a witness identity protection certificate has been filed in court in relation to proceedings gives evidence in the proceedings, the court must (unless it considers it inappropriate) direct the jury not to give the operative's evidence any more or less weight, or draw any adverse inferences against the defendant or another party to the proceedings because the certificate has been filed or the court has made an order under section 38. 40—Application for disclosure of operative's identity etc in proceedings (1) If a witness identity protection certificate in respect of an operative has been filed in a court in relation to proceedings, a party to the proceedings or a lawyer assisting the court in the proceedings may, at any time after the certificate has been filed, apply to the court— (a) for permission— (i) to ask a question of a witness (including the operative) that may lead to the disclosure of the operative's identity or where the operative lives; or (ii) for a person involved in the proceedings to make a statement that discloses, or may lead to the disclosure of, the operative's identity or where the operative lives; or (b) for an order requiring a witness (including the operative) to answer a question, give evidence or provide information that discloses, or may lead to the disclosure of, the operative's identity or where the operative lives. (2) An application under this section must be heard in the absence of the jury (if any). (3) The court may give permission or make an order under this section if (and only if) the court is satisfied that— (a) there is evidence that, if accepted, would substantially call into question the operative's credibility; and (b) it would be impractical to test properly the credibility of the operative without risking the disclosure of, or disclosing, the operative's identity or where the operative lives; and (c) it is in the interests of justice that the operative's credibility be tested. (4) Each party to the proceedings must be informed of any proposal by the court to give permission or make an order under this section and, if the proposed permission or order relates to a witness who is the operative in respect of whom the witness identity protection certificate has been filed— (a) if the witness has not yet given evidence in the proceedings—the party calling the witness must be given the opportunity to withdraw the witness (in which case, the permission or order relating to that witness lapses); (b) if the witness has already given evidence in the proceedings—the court may, and if a party so requests must, warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. (5) Unless the court considers that the interests of justice require otherwise, the court must be closed— (a) when an application is made under this section; and (b) if permission is given or an order made in response to the application—when the evidence is given or information provided that discloses, or may lead to the disclosure of, the operative's identity or where the operative lives. (6) The court must make an order suppressing the publication of anything said— (a) when an application is made under this section; and (b) if permission is given or an order made in response to the application—when the evidence is given or information provided that discloses, or may lead to the disclosure of, the operative's identity or where the operative lives. (7) The court may, under this section, make any other order it considers appropriate to protect the operative's identity or to prevent the disclosure of where the operative lives. (8) Nothing in this section prevents the taking of a transcript of court proceedings but the court may make an order for how the transcript is to be dealt with, including an order suppressing its publication. (9) A person is guilty of an offence if— (a) the person knows, or is reckless as to whether, an order has been made under this section; and (b) the person intentionally, knowingly or recklessly contravenes the order. Maximum penalty: Imprisonment for 2 years. (10) Subsection (9) does not limit the court's power to punish for contempt. 41—Offences (1) A person commits an offence if— (a) a witness identity protection certificate in respect of an operative has been given; and (b) the person knows, or is reckless as to whether, the certificate has been given; and (c) the person intentionally, knowingly or recklessly does something (the disclosure action) that discloses, or is likely to lead to the disclosure of, the operative's identity or where the operative lives; and (d) the person knows, or is reckless as to whether, the certificate has not been cancelled (whether under this Act or a corresponding law) before the person does the disclosure action; and (e) the person knows, or is reckless as to whether— (i) the disclosure action is not permitted under this Act; or (ii) the disclosure action is not authorised under a corresponding law. Maximum penalty: Imprisonment for 2 years. (2) A person is guilty of an offence against this subsection if the person commits an offence against subsection (1) in circumstances in which the person— (a) intends to endanger the health or safety of another or prejudice the effective conduct of an investigation; or (b) knows, or is reckless as to whether, the disclosure action— (i) endangers or will endanger the health or safety of another; or (ii) prejudices or will prejudice the effective conduct of an investigation. Maximum penalty: Imprisonment for 10 years. Division 4—Delegation 42—Delegation (1) Despite any other Act or law to the contrary, the functions of a chief officer of a law enforcement agency under this Part may not be delegated to any other person except as provided by this Division. (2) A chief officer of a law enforcement agency may delegate any of the chief officer's functions under this Part (except this power of delegation) to a senior officer of the agency. (3) In this Division— senior officer means— (a) in relation to SA Police—a Deputy Commissioner; (b) in relation to the Australian Crime Commission— (i) the Director National Operations; or (ii) the General Manager National Operations; or (iii) a member of staff of the Australian Crime Commission who is an SES employee or acting SES employee (within the meaning of the Australian Crime Commission Act 2002 of the Commonwealth) and who holds a position that is prescribed by the regulations for the purposes of this definition. Part 5—Application of Act to approvals, authorities or certificates under corresponding laws 43—Application of Act to approvals under corresponding laws The following provision applies to anything done in this State in relation to a corresponding approval as if it were an approval given under Part 2: section 5 (Legal immunity of persons taking part in approved undercover operations). 44—Application of Act to authorities under corresponding laws The following provisions apply to anything done in this State in relation to a corresponding authority as if it were an authority granted under Part 3: (a) section 16 (Legal immunity of officers of issuing agencies); (b) section 18 (Assumed identity may be acquired and used); (c) section 19 (Legal immunity of authorised persons acting under authority); (d) section 21 (Particular qualifications); (e) section 22 (Effect of being unaware of variation or cancellation of authority); (f) section 25 (Misuse of assumed identity); (g) section 26 (Disclosing information about assumed identity). 45—Application of Act to witness identity protection certificates under corresponding laws The following provisions apply (with any necessary modifications) to a witness identity protection certificate given under a corresponding law as if it were a witness identity protection certificate given under Part 4: (a) section 37 (Filing and effect of filing of witness identity protection certificate in court); (b) section 38 (Orders to protect operative's identity etc); (c) section 39 (Directions to jury); (d) section 41 (Offences). Part 6—Miscellaneous 46—State Records Act 1997 and Freedom of Information Act 1991 not to apply (1) The State Records Act 1997 does not apply to information obtained under this Act. (2) Information obtained under this Act is not liable to disclosure under the Freedom of Information Act 1991. 47—Annual report (1) As soon as practicable after 30 June in each year, the chief officer of a law enforcement agency must submit a report to the Minister that includes the following information: (a) in relation to Part 2— (i) the classes of offence for which approvals were given or renewed during the period of 12 months ending on the preceding 30 June; and (ii) the number of approvals given or renewed during that period for offences of each class; (b) in relation to Part 3— (i) the number of authorities granted during the period of 12 months ending on the preceding 30 June; and (ii) a general description of the activities undertaken by authorised persons when using assumed identities under this Act during that period; and (iii) the number of applications for authorities that were refused during that period; and (iv) a statement as to whether or not any fraud or other unlawful activity was identified by an audit under that Part during that period; and (v) any other information relating to authorities and assumed identities that the Minister considers appropriate; (c) in relation to Part 4— (i) the number of witness identity protection certificates given during the period of 12 months ending on the preceding 30 June; and (ii) the basis on which the chief officer was satisfied about the matters mentioned in section 31(1)(b) for each certificate; and (iii) if permission was given or an order made under a provision of a corresponding law that corresponds to section 40 in interstate proceedings in which a witness identity protection certificate in respect of a local operative of the agency was filed—details of the interstate proceedings that relate to the permission or order; and (iv) if a witness identity protection certificate was cancelled—the reason why the certificate was cancelled; and (v) if permission was given under section 35—the reason why the permission was given; and (vi) any other information relating to witness identity protection certificates that the Minister considers appropriate; (d) any other information relating to the administration of this Act that the Minister considers appropriate. (2) The report relating to Part 4 must not include information that discloses, or may lead to the disclosure of, an operative's identity, or where the operative lives, unless the witness identity protection certificate in respect of the operative has been cancelled. (3) The chief officer must advise the Minister of any information in the report that should, in the chief officer's opinion, be excluded from the report before the report is laid before Parliament because the information, if made public, could reasonably be expected to— (a) endanger a person's safety; or (b) prejudice an investigation or prosecution; or (c) compromise a law enforcement agency's operational activities or methodologies. (4) The Minister must— (a) exclude information from the report if satisfied on the advice of the chief officer of any of the grounds set out in subsection (3); and (b) on or before 30 September in each year—cause a copy of the report to be laid before each House of Parliament. 48—Regulations (1) The Governor may make such regulations as are necessary or expedient for the purposes of this Act. (2) Without limiting the generality of subsection (1), the regulations may— (a) be of general or limited application; (b) differ according to differences in time, place or circumstances. Schedule 1—Transitional provisions Part 1—Interpretation 1—Interpretation (1) In this Schedule— commencement day means the day on which this Schedule comes into operation. (2) A reference in an Act, a statutory instrument or any other instrument or document to an undercover operation approved under the Criminal Law (Undercover Operations) Act 1995 is to be read as a reference to an undercover operation approved under this Act and is to be construed accordingly. Part 3—Transitional provisions 3—Approved undercover operations An undercover operation that was approved under the repealed Act immediately before the commencement day will be taken to be an undercover operation approved under Part 2. 4—Assumed identities (1) An authority to use an assumed identity granted in accordance with the policies and procedures of SA Police to a member of SA Police that was in force immediately before the commencement day will be taken, for the period referred to in subclause (2), to be an authority granted under Part 3 to use the assumed identity. (2) The period is from the start of the commencement day until the earlier of the following: (a) the day on which cancellation of the authority under Part 3 takes effect; or (b) 6 months after the commencement day. (3) Nothing in this clause prevents the law enforcement officer from applying for and being granted an authority under Part 3 in relation to the assumed identity. (4) An authority may be granted under Part 3 in relation to criminal activity occurring before, on or after the commencement day. 5—Witness identity protection (1) A witness identity protection certificate may be given under Part 4 in relation to interstate proceedings (within the meaning of that Part) that is commenced on or after the commencement day. (2) An interstate witness identity protection certificate may be filed under Part 4 in proceedings in this State that is commenced on or after the commencement day. Legislative history Notes • Amendments of this version that are uncommenced are not incorporated into the text. • Please note—References in the legislation to other legislation or instruments or to titles of bodies or offices are not automatically updated as part of the program for the revision and publication of legislation and therefore may be obsolete. • Earlier versions of this Act (historical versions) are listed at the end of the legislative history. • For further information relating to the Act and subordinate legislation made under the Act see the Index of South Australian Statutes or www.legislation.sa.gov.au. Legislation repealed by principal Act The Criminal Investigation (Covert Operations) Act 2009 repealed the following: Criminal Law (Undercover Operations) Act 1995 Principal Act and amendments New entries appear in bold. Year No Title Assent Commencement 2009 7 Criminal Investigation (Covert Operations) Act 2009 26.2.2009 1.7.2009 (Gazette 25.6.2009 p2999) 2012 52 Independent Commissioner Against Corruption Act 2012 6.12.2012 Sch 3 (cl 11)—1.9.2013 (Gazette 23.5.2013 p2006) 2014 20 Independent Commissioner Against Corruption (Miscellaneous) Amendment Act 2014 27.11.2014 Sch 1 (cl 1)—27.11.2014 (Gazette 27.11.2014 p6554) 2016 2 Surveillance Devices Act 2016 18.2.2016 Sch 1 (cl 2)—18.12.2017 (Gazette 12.12.2017 p4961) 2017 18 Summary Procedure (Indictable Offences) Amendment Act 2017 14.6.2017 Sch 2 (cll 4 & 41)—5.3.2018 (Gazette 12.12.2017 p4961) 2018 40 Summary Offences (Liquor Offences) Amendment Act 2018 13.12.2018 Sch 1 (cl 1)—13.12.2020 (s 7(5) Acts Interpretation Act 1915) 2021 38 Independent Commissioner Against Corruption (CPIPC Recommendations) Amendment Act 2021 7.10.2021 Sch 1 (cll 10, 11 & 76)—7.10.2021: s 2 2025 29 Biodiversity Act 2025 26.6.2025 Sch 5 (cl 12)—uncommenced Provisions amended New entries appear in bold. Entries that relate to provisions that have been deleted appear in italics. Provision How varied Commencement Long title amended under Legislation Revision and Publication Act 2002 1.9.2013 Pt 1

s 2 omitted under Legislation Revision and Publication Act 2002 1.9.2013 s 3

s 3(1)

chief officer amended by 52/2012 Sch 3 cl 11(1) 1.9.2013

amended by 38/2021 Sch 1 cl 10(1) 7.10.2021 law enforcement agency amended by 52/2012 Sch 3 cl 11(2) 1.9.2013

amended by 38/2021 Sch 1 cl 10(2) 7.10.2021 law enforcement officer substituted by 52/2012 Sch 3 cl 11(3) 1.9.2013

amended by 38/2021 Sch 1 cl 10(3) 7.10.2021 serious criminal behaviour amended by 40/2018 Sch 1 cl 1(1), (2) 13.12.2020 undercover operations amended by 2/2016 Sch 1 cl 2 18.12.2017 Pt 2

s 4

s 4(1a) inserted by 20/2014 Sch 1 cl 1(1) 27.11.2014

amended by 38/2021 Sch 1 cl 11 7.10.2021 s 4(2) and (3) amended by 20/2014 Sch 1 cl 1(2) 27.11.2014 s 4(4) amended by 20/2014 Sch 1 cl 1(3) 27.11.2014 s 4(5) and (6) amended by 20/2014 Sch 1 cl 1(2) 27.11.2014 Pt 4

s 30 amended by 18/2017 Sch 2 cl 4 5.3.2018 Sch 1

Pt 2 omitted under Legislation Revision and Publication Act 2002 1.9.2013 Transitional etc provisions associated with Act or amendments Summary Procedure (Indictable Offences) Amendment Act 2017, Sch 2 Pt 14 41—Transitional provision The amendments made by this Act apply to proceedings relating to an offence that are commenced after the commencement of this Act, regardless of when the offence occurred (and the Acts amended by this Act, as in force before the commencement of this Act, continue to apply to proceedings that were commenced before the commencement of this Act). Independent Commissioner Against Corruption (CPIPC Recommendations) Amendment Act 2021, Sch 1 Pt 21 76—Savings and transitional regulations Regulations may be made under any Act amended by this Act (including under the Independent Commission Against Corruption Act 2012 as in force after the commencement of this Act) to make provisions of a saving or transitional nature consequent on the enactment of this Act or on the commencement of specified provisions of this Act. Historical versions 1.9.2013

27.11.2014

18.12.2017

5.3.2018

13.12.2020

1 Criminal Investigation (Covert Operations) Act 2009

The Act draws a tight vocabulary around three principal devices: undercover operations (Part 2), assumed identities/authorities (Part 3), and witness identity protection certificates (Part 4).

Undercover operations (s4, Pt 2). These are operations intended to give persons an opportunity to manifest or provide evidence of serious criminal behaviour. A senior police officer (rank of Superintendent or above) may approve such operations, subject to statutory gateway conditions: reasonable suspicion of serious criminal behaviour, limitation of scope, proportionality and protection against inducement of crime (s4(1)-(2)). Approvals must be written, specify authorised participants, the nature of permitted conduct and have a maximum three‑month term (s4(4)). The Independent Commissioner Against Corruption can approve in corruption investigations where the suspected corruption involves serious criminal behaviour (s4(1a)). Section 5 creates legal immunity for authorised participants acting in accordance with an approval, applied prospectively and retrospectively (s5(1)-(2)).
Assumed identity authorities (Pt 3). An authority is a written authorisation by a chief officer of a law enforcement agency that permits a named authorised officer or authorised civilian to acquire or use an assumed identity (s6-9). The application and grant process requires particular information (s6(3)), and the chief officer must be satisfied that the identity is necessary, the risk of abuse is minimal, and civilian use is only authorised where law enforcement officer use would be impossible or impracticable (s7(1)-(2)). Authorities for civilians are time limited to up to three months (s8(1)(viii)(C); s9(2)); authorities for officers remain until cancelled (s9(1)). The Act contemplates formal requests to issuing agencies for evidence of the assumed identity (s14) and court orders to make entries in birth, death and marriage registers (s12). Legal immunity (s19), indemnity (s20) and specific limitations (s21) apply to authorised persons following grant.
Witness identity protection certificates (Pt 4). These are certificates the chief officer may give in respect of a local operative in relation to proceedings, where disclosure would endanger safety or prejudice an investigation (s31). Certificates must include specified content relating to credibility matters and cannot disclose information that may reveal the operative’s identity or address (s33). Filing a certificate in court triggers procedural protections: the operative may give evidence under an assumed or court name; questions or statements likely to reveal identity or where they live are forbidden; the court may make protective orders; jury directions and closed hearings for applications are provided (s37-40). The decision to give a certificate is final and not subject to judicial review (s32).

Other recurring concepts:

Issuing agencies: government or non‑government bodies that can issue evidence of identity; government issuing agencies must comply with requests for evidence under an authority, non‑governments may do so (s3 defns; s14(3)).
Corresponding law/participating jurisdiction: the Act allows regulations to declare laws of other jurisdictions that correspond to Parts of this Act; corresponding approvals, authorities and certificates have defined consequences in South Australia (s3; Pt 5; s43-45).
Records, audits and oversight: chief officers must keep specified records (s27) and conduct audits at least every six months plus post‑cancellation audits (s28). Chief officers must also report annually to the Minister on classes and numbers of approvals, authorities and certificates and may exclude material from publication on defined operational grounds (s47).
Immunities and indemnities: specified criminal immunity (s5, s16, s19) and indemnities for civil liability (s17, s20) attach where acts are within an approval or authority and prescribed regulatory requirements are met.

These concepts form a system of written authorisations, institutional checks (senior signoff, supervisory requirements, limited duration for civilians, audit), statutory protections for compliance, and penal measures for unauthorised use or disclosure.

The Act establishes distinct roles and stakeholders and specifies who decides, who pays, and who is constrained.

Primary decision makers and duty holders:

Chief officers of law enforcement agencies (s3 definition). For SA Police, the chief officer is the Commissioner of Police; for the Australian Crime Commission, the CEO; for the Independent Commission Against Corruption, the Independent Commissioner Against Corruption (s3). Chief officers grant authorities under Part 3 (s6-7), give witness identity protection certificates under Part 4 (s31), make decisions to vary/cancel authorities (s10), must keep records and arrange audits (s27-28) and must provide annual reports to the Minister (s47). The chief officer determines compliance and operational necessity tests set out in the Act.
Senior police officers and the Independent Commissioner Against Corruption (s4). Senior police officers (rank Superintendent or above) approve undercover operations (s4(1)); the Independent Commissioner Against Corruption may do so for corruption investigations involving serious criminal behaviour (s4(1a)). These approvals authorise participation in undercover operations and trigger immunity under s5.
Law enforcement officers and authorised civilians (s3 definitions). Law enforcement officers may apply for authorities and, if authorised, acquire or use assumed identities in the course of duty (s6, s18). Authorised civilians may be authorised where it would be impossible or impracticable to use a law enforcement officer, but such civilian authorisations require an appointed supervisor (s6(3)(iii); s7(3)). Supervisors must meet rank thresholds (Sergeant or Senior Investigator) (s7(4)). Authorised civilians have time‑limited authorities (maximum three months) (s8, s9).
Issuing agencies and their officers (s3 defns; s14). Government issuing agencies named in an authority must comply with requests to produce evidence of an assumed identity (s14(3)(a)); non‑government issuing agencies may comply (s14(3)(b)). Officers who comply are granted immunity from criminal responsibility where compliance would otherwise be an offence (s16), and the requesting law enforcement agency must indemnify them for liabilities and costs if regulatory requirements are satisfied (s17).
Courts and registrars. The Supreme Court may make closed orders directing the Registrar of Births, Deaths and Marriages to make entries (s12). Courts are the forum for filing witness identity protection certificates and making protective orders, directing juries, and hearing applications to test operative credibility (s37-40). The presiding officer may require the operative to disclose identity in the judge’s private view (s37(4)).

Secondary affected parties:

Parties to proceedings and their lawyers who must follow certificate filing, service and confidentiality rules (s37(2)-(3), s40(4)), and who may apply to test credibility of an operative under strict conditions (s40).
Ministers and Parliament: chief officers must submit annual reports to the Minister, who lays the report before each House of Parliament by 30 September and may exclude sensitive information on the chief officer’s advice (s47).
The public and researchers: the Act excludes information obtained under it from the State Records Act 1997 and FOI Act 1991 (s46), restricting access to operational material.
Participating jurisdictions and their issuing agencies where corresponding laws are declared under the regulations; mutual recognition affects how evidence and entries are produced across borders (Pt 5; s23-24).

Who pays and who bears risk:

Law enforcement agencies bear the civil‑liability and cost exposure where an issuing agency or authorised person is indemnified for liability incurred in complying with the Act’s instruments (s17, s20, s23(2)). The operational costs of record keeping, audit and reporting fall upon chief officers and their agencies (s27-28, s47).
Non‑government issuing agencies are permitted but not obliged to comply with evidence requests; if they do, indemnity provisions apply (s14(3)(b), s17).
Individuals and entities who disclose protected information or misuse assumed identities face criminal penalties and custodial risk (s25-26, s41).

The Act therefore concentrates decision‑making and operational responsibility in senior officials of specified law enforcement agencies, assigns supervisory duties for civilian operatives, sets out indemnity regimes that make agencies responsible for costs arising from participation by issuing agencies and authorised persons, and limits third‑party disclosure and public access to operational records.

The Act creates a matrix of duties on chief officers, issuing agencies and supervisors, and rights/defences for authorised participants. It also sets judicial processes and limited rights for parties to proceedings.

Duties on decision makers and agencies

Approvals: Senior police officers and the Independent Commissioner Against Corruption must satisfy statutory conditions before approving undercover operations: reasonable suspicion of serious criminal behaviour, restriction of scope, proportionality and prevention of inducement of criminal behaviour (s4(2)(a)-(d)). Approvals must be written, signed and specify time, participants, conduct and a period not exceeding three months, and a copy must be lodged with the Attorney‑General within 14 days of grant or renewal (s4(4), (6)).
Authorities: Chief officers must determine authority applications on reasonable grounds that the assumed identity is necessary, that risk of abuse is minimal, and, for civilian requests, that use by a law enforcement officer would be impossible or impracticable (s7(2)). Authorities must be in approved form and include specified details (s8), and chief officers must review each authority at least once every 12 months to confirm grounds still exist (s11).
Supervision and qualifications: If an authority is granted to an authorised civilian, the chief officer must appoint a supervisor who satisfies rank thresholds (s7(3)-(4)). Sections 19-21 impose specific qualifications duties: immunity and indemnity do not apply for actions requiring particular professional qualifications where the operative lacks them (s21).
Records, audits and reporting: Chief officers must maintain specified records for each authority (s27(2)) and arrange audits at least every six months while an authority is in force and once within six months following cancellation or expiry (s28(1)). Results must be reported to the chief officer (s28(4)). Chief officers must submit annual reports to the Minister which include specified numerical and descriptive material, but may exclude sensitive operational material on specified grounds (s47).
Requests to issuing agencies: The chief officer who grants an authority may request the chief officer of an issuing agency to produce evidence of the assumed identity and provide it to the authorised person (s14(1)). Government issuing agencies must comply within the specified reasonable period; non‑government issuing agencies may comply (s14(3)). Issuing agencies must cancel produced evidence on direction (s15).

Rights and protections for authorised participants and issuing officers

Criminal immunity: Authorised participants in approved undercover operations have no criminal liability for acts done in accordance with the approval (s5(1)), and authorised persons who acquire or use an assumed identity in accordance with an authority and supervisory direction are not criminally responsible for acts that would otherwise be offences, subject to qualifications in s21 (s19).
Indemnity: Law enforcement agencies must indemnify issuing agencies and officers for liabilities incurred because of compliance with requests or directions (s17) and must indemnify authorised persons for liabilities incurred in acquiring or using an assumed identity where regulatory requirements are met (s20). The Act requires the law enforcement agency to bear civil risk when its instruments demand cooperation.
Procedural protections in court: Filing a witness identity protection certificate enables an operative to give evidence under an assumed name and forbids lines of questioning or statements that may reveal identity or residence (s37(3)). The presiding officer may privately require disclosure of identity (s37(4)). A party may, and a judge must consider, an application that asks for disclosure only if the court is satisfied strict credibility and interests of justice standards are met (s40).

Constraints, offences and enforcement rights

Misuse and disclosure offences carry maximum penalties for unauthorised acquisition/use of assumed identities (s25), and for disclosing information likely to reveal assumed identities (s26). Offences that endanger safety or prejudice investigations attract higher maximum penalties (up to 10 years) (s26(2), s41(2)).
Courts have power to make protective orders (s38(1)), to direct juries regarding weight to be attached to evidence from protected operatives (s39), and to hear applications in closed court and suppress publication (s40(2), (5)-(6)).

Administrative and procedural rights

Decisions to give witness identity protection certificates are final and non‑justiciable in courts subject to limited disciplinary review in relation to the decision maker (s32).
Authorities and approvals may be varied or cancelled by the granting chief officer at any time; written notice and reasons must be given to the authorised person and supervisor where applicable (s10).

Collectively, the Act creates duties of careful decision making, supervision and record keeping on chief officers and supervisors, provides legal protection and indemnity to compliant operatives and cooperating agencies, and limits third‑party disclosure and public access while protecting judicial processes by providing specified procedures for testing credibility and making closed orders.

The Act blends statutory immunity for authorised conduct with criminal offences for misuse and disclosure, and empowers courts to make orders protecting operatives with enforceable sanctions.

Criminal liability where immunity does not cover

Misuse of assumed identity (s25). An authorised officer or authorised civilian commits an offence if they intentionally, knowingly or recklessly acquire evidence of or use an assumed identity covered by their authority while knowing or being reckless that the acquisition or use is not in accordance with their authority or not in the course of duty/directions. Maximum penalty for both classes is imprisonment for two years (s25(1)-(2)).
Disclosing information about assumed identity (s26). A person who intentionally, knowingly or recklessly discloses information they know or are reckless as to whether it reveals, or is likely to reveal, that an assumed identity is not a person’s real identity, and who knows or is reckless as to whether the disclosure is not authorised, commits an offence with maximum penalty two years imprisonment (s26(1)). Aggravated circumstances that intend to endanger safety or prejudice investigations, or where the disclosure does endanger safety or prejudice an investigation, carry a maximum penalty of ten years imprisonment (s26(2)).
Contravening court protective orders (s38(2), s40(9)). Intentionally, knowingly or recklessly contravening a court order made to protect an operative’s identity carries a maximum penalty of two years imprisonment. The Act explicitly reserves the court’s contempt powers as a separate enforcement path (s38(3), s40(10)).
Offences related to witness identity protection certificates (s41). Disclosing, or doing an action likely to lead to disclosure of, an operative’s identity or where they live while knowing a certificate is in force, and knowing disclosure is not permitted, carries a maximum penalty of two years (s41(1)). Aggravated circumstances (as in s26) attract up to ten years (s41(2)).

Immunity as an affirmative shield

Legal immunity for authorised participants in undercover operations is absolute under the Act for acts done in accordance with an approval (s5(1)). The immunity operates prospectively and retrospectively (s5(2)). Similarly, officers of issuing agencies who act to comply with requests under Pt 3 are not criminally responsible for offences that would otherwise arise from that compliance (s16). Authorised persons have criminal immunity for acts done in the course of acquiring or using an assumed identity in accordance with an authority and supervisory direction, provided the act would not be an offence if the assumed identity were real (s19).

Civil indemnities and financial exposure

The requesting law enforcement agency must indemnify issuing agencies and their officers for liabilities incurred because of compliance with a request/direction, including reasonable costs, where regulatory requirements are met (s17). Similarly, the law enforcement agency must indemnify authorised persons for liabilities incurred when acting in accordance with an authority (s20). These indemnities shift financial and civil risk from individual officers or external issuing agencies to the sponsoring law enforcement agency.

Enforcement mechanisms and institutional controls

Courts enforce protective orders and may require operative identity to be disclosed to the presiding officer only (s37(4)). Applications to disclose an operative’s identity follow a strict test focused on substantial credibility concerns and interests of justice (s40(3)), and are heard in the absence of the jury and normally in closed court with suppression orders (s40(2), (5)-(6)). The Act designates penalties for those who breach orders or disclosure provisions and reserves contempt powers.
Administrative enforcement: chief officers must cancel or vary authorities when grounds no longer exist (s10); failure to comply with the statutory requirements could lead to internal disciplinary consequences or operational invalidity of immunity/indemnity, though the Act does not itself prescribe criminal sanctions for administrative failures to keep records or conduct reviews (s10-11, s27-28).

Reporting and oversight

Biannual audits of record‑keeping (s28) and annual reporting to the Minister with specified content (s47) establish an internal oversight loop. The Minister has discretion to exclude material before tabling in Parliament where publication would endanger safety or prejudice investigations (s47(3)-(4)). The State Records Act and FOI Act do not apply to information obtained under this Act, which limits independent external enforcement via public scrutiny (s46).

In summary, the Act enforces compliance through a combination of statutory criminal offences with custodial penalties, administrative cancellation powers and judicial enforcement of protective orders, balanced against statutory immunities and indemnities for authorised conduct. Enforcement therefore operates through both criminal liability for misuse and institutional controls exercised by chief officers and courts.

The Act explicitly creates points of intersection with registries, criminal procedure, administrative law, inter‑jurisdictional recognition and access to records.

Interplay with registration laws and courts

Births, Deaths and Marriages Registration Act 1996. The Supreme Court may order the Registrar to make or cancel entries in the Register as a direct statutory power linked to an authority or the cancellation of an authority (s12-13). An application for an order under s12 must be heard in closed court (s12(3)); applications to cancel follow a 28‑day timing obligation on the chief officer to apply to the Court (s13(2)(a)). Section 14(4) answers part of the interplay: a request under s14 for evidence of an assumed identity cannot be made for an entry in the State Register (s14(4)).
Criminal procedure and evidence. Part 4 is designed to interact with proceedings in court. Filing a witness identity protection certificate affects what questions may be asked and what may be published (s37(3)). Section 40 provides a framework for applications to disclose an operative’s identity in court with protective procedural steps, including closed hearings, jury absence, suppression orders and a strict credibility test (s40). Section 39 requires the court to direct the jury (subject to exceptions) to avoid adverse inferences simply because a certificate has been filed.

Administrative and public access laws

State Records Act 1997 and Freedom of Information Act 1991. Section 46 removes information obtained under this Act from the operation of those two Acts. The State Records Act does not apply to information obtained under this Act; such information is also not liable to disclosure under FOI (s46(1)-(2)). The consequence is a statutory bar limiting public, parliamentary and FOI scrutiny of operational material unless the Minister, under s47, elects to include material in the annual report or the chief officer advises inclusion.

Inter-jurisdictional recognition and mutual assistance

Corresponding laws and participating jurisdictions. The Act allows regulations to declare corresponding laws of other jurisdictions that correspond to this Act or Parts of it (s3 definition; s48). Part 5 establishes that corresponding approvals, authorities and witness identity protection certificates have prescribed effect in South Australia as if they were those granted under the Act (s43-45). Mutual recognition provisions authorise requests to issuing agencies in participating jurisdictions to produce evidence or provide it to operatives (s23-24), and establish indemnity obligations for requesting agencies when such cross‑jurisdictional cooperation occurs (s23(2)).

Professional regulation and qualifications

Particular qualifications limitation. Sections 21(1)-(2) exclude the operation of immunity and indemnity where an act requires a particular qualification and the authorised person does not possess it. Thus, any professional licensing regimes (medical, legal, etc.) intersect with the Act where operative conduct would otherwise require specified qualifications to lawfully perform the act.

Criminal law and common law

Immunities and offences interact with general criminal law. The Act creates statutory immunity for authorised acts that would otherwise be criminal (s5, s16, s19). It also creates new offences for misuse and disclosure (s25-26, s41). The Act expressly does not affect the common law protection of non‑operatives who give evidence (s36(2)), preserving extant common law where persons other than operatives are concerned.

Legislative history and other Acts

The Act repealed and replaced the Criminal Law (Undercover Operations) Act 1995 and contains transitional provisions recognising earlier approvals and authorities (Schedule 1). The legislative history lists amendments affecting definitions and specific provisions, including interaction with the Independent Commissioner Against Corruption Act 2012 and the Surveillance Devices Act 2016, which changes the definition of undercover operations and other mechanics (Legislative history).

Overall, the Act is integrated with registry and court processes, creates carved‑out information flows from public‑access regimes, provides a framework for cross‑border recognition, and operates alongside professional qualification statutes and general criminal law. Where the Act authorises otherwise illegal conduct it displaces criminal liability, provided formal statutory authorisations and supervisory requirements are met.

The legislative history in the source lists the Act’s principal and amending Acts and identifies provisions varied across time. The principal Act was enacted in 2009 (No. 7), assented 26 February 2009 and commenced 1 July 2009 (Legislative history). Key subsequent amendments recorded in the text are:

Independent Commissioner Against Corruption Act 2012 (No. 52). Amendments (Sch 3 cl 11) effective 1 September 2013 modified the definition of chief officer and the law enforcement agency definition and substituted the law enforcement officer definition (Legislative history: 2012 No. 52, Sch 3 cl 11). These amendments align the Act with institutional changes associated with the Independent Commissioner Against Corruption.
Independent Commissioner Against Corruption (Miscellaneous) Amendment Act 2014 (No. 20). Inserted s4(1a) and amended parts of s4(2)-(6) to give the Independent Commissioner power to apply for undercover operations in corruption investigations (Sch 1 cl 1), effective 27 November 2014 (Legislative history).
Surveillance Devices Act 2016 (No. 2). Amended the definition of undercover operations (Sch 1 cl 2), with the relevant amendment commencing 18 December 2017 (Legislative history).
Summary Procedure (Indictable Offences) Amendment Act 2017 (No. 18). Amended s30 (Divisions in Pt 4) with transitional application to proceedings commenced after commencement (Sch 2 cl 4), effective 5 March 2018 (Legislative history).
Summary Offences (Liquor Offences) Amendment Act 2018 (No. 40). Amended the definition of serious criminal behaviour to add specified offences (Sch 1 cl 1), with associated commencement timelines noted in the legislative history (commenced 13 December 2020 using Acts Interpretation Act 1915 timing rules).
Independent Commissioner Against Corruption (CPIPC Recommendations) Amendment Act 2021 (No. 38). Amendments effective 7 October 2021 (Sch 1 cl 10, 11 & 76) further adjusted definitions and delegation related provisions to reflect CPIPC recommendations; the legislative history lists specific substitution and amendment entries across the text (Legislative history).
Biodiversity Act 2025 (No. 29) is listed in the legislative history with an uncommenced Schedule 5 clause that nominally affects the Act; its commencement is uncommenced as noted (Legislative history 2025 No. 29).

The legislative history also notes that earlier versions of the Act are available with dates (1.9.2013, 27.11.2014, 18.12.2017, 5.3.2018, 13.12.2020). The Schedule 1 transitional provisions preserved approved undercover operations and pre‑existing SA Police assumed identity authorities for limited periods at commencement (Schedule 1 cl 3-4).

The source lists specific provisions that were amended and when: examples include substitution of s3 definitions (chief officer, law enforcement agency, law enforcement officer) by the 2012 Act, insertion of s4(1a) in 2014, and amendment to s30 in 2017 (Legislative history, Provisions amended table). The legislative history further records that s2 was omitted under the Legislation Revision and Publication Act 2002, and the long title was revised in 2013.

For practitioners: the Act has been subject to iterative amendments connecting it to the Independent Commissioner regime and to surveillance device law, and the legislative history should be consulted for version‑specific practice issues. The source cautions that references to other legislation or office titles may be obsolete and that uncommenced amendments are not incorporated (Legislative history notes).

The source provides no case law or judicial decisions. It does not name any cases or report judicial interpretation of provisions. Section 32 expressly removes judicial review of a decision to give a witness identity protection certificate, subject only to review in disciplinary proceedings against the decision maker; that will narrow grounds for litigation challenging such decisions (s32). Beyond that procedural constraint, the Act anticipates court involvement in making orders under s12 and Pt 4, and in applications under s40 to test credibility, but the provided text does not report any litigation or appellate history interpreting these provisions.

Given the absence of reported cases in the source, users should treat the Act’s text as the governing authority and consult legal databases for any judicial treatment post‑dating this source. The Act’s emphasis on closed hearings, suppression orders, and finality of certain administrative decisions (s12(3), s32) means litigation records, if any, may be constrained or redacted, so locating litigation that engages the Act could require targeted searches of criminal, civil and administrative law dockets and any published judgments.

Several operational and legal pitfalls arise from the Act’s structure and wording; these are practical points drawn from the statutory text.

Finality of certificate decisions (s32). The chief officer’s decision to give a witness identity protection certificate is final and not reviewable in court. This removes judicial oversight of that administrative decision except in disciplinary proceedings against the decision maker. A practitioner should not assume judicial review is available to challenge a certificate grant.
Immunity and indemnity are conditional. Immunities for authorised persons and issuing officers apply only where acts are done in accordance with an approval or authority and in the course of duty or under supervisory direction (s5, s16, s19). Indemnities for issuing agencies and authorised persons require that any regulatory requirements prescribed be met (s17, s20). Absent compliance with form, supervisory or regulatory requirements, immunity and indemnity protections may not attach.
Civil liabilities shift to law enforcement agency. Where the Act indemnifies issuing agencies or authorised persons, the law enforcement agency must pick up the liability and costs (s17, s20). This centralises civil risk within the sponsoring agency but not necessarily the State, unless agencies are state bodies. Practitioners negotiating with non‑government issuing agencies should secure indemnity arrangements in writing and ensure regulatory requirements are satisfied.
Non‑government issuing agencies are optional. Government issuing agencies must comply with evidence requests (s14(3)(a)); non‑government issuing agencies may choose whether to comply (s14(3)(b), s24(2)(b)). Operational partners outside government may thus decline cooperation; plans that assume universal issuing agency compliance are vulnerable.
BDM register entries are closed and limited (s12-13, s14(4)). The Supreme Court can order insertions and cancellations in the State Register, but requests under s14 cannot compel an entry in the Register (s14(4)). An application to make or cancel such entries must be heard in closed court; timelines are imposed on the Registrar and for chief officer applications after authority cancellation (s12(2)-(3), s13(2)-(3)).
Statutory exclusion from State Records and FOI (s46). Material obtained under the Act is not subject to State Records Act or FOI disclosure. The annual report obligation (s47) is the principal public transparency mechanism, but the Minister may exclude sensitive information before tabling. This constrains external audit and public scrutiny.
Delegation limits (s29, s42). Chief officers can delegate functions under Part 3 or Part 4 only to senior officers defined by rank and may only have up to four delegations under s29(3). For Part 4 delegations the senior officer threshold is higher (Deputy Commissioner for SA Police). Noncompliance with the delegation requirements risks invalid decision‑making.
Time limits for civilian authorities (s8, s9). Authorities for authorised civilians cannot exceed three months, and chief officers must record and review authorities annually (s11). Practically, long‑running covert work must be structured as renewals and reviews, increasing administrative load and potential for operational interruptions.
Evidence of assumed identity restricted for BDM entries (s14(4)). A request under s14 cannot seek production of an entry in the State Register, indicating limits on what issuing agencies can be asked to do and requiring court orders under s12 when register alteration is necessary.
Qualifications gap (s21). Immunity and indemnity do not cover acts for which a particular qualification is required where the authorised person lacks it. Operational plans involving professional acts that require qualification (for example, regulated medical procedures) must ensure the authorised person has the required credentials or accept liability.
Criminal penalties for disclosure extend beyond operatives (s26, s41). The disclosure offences apply to any person who recklessly or knowingly discloses identity or assumed identity information, with aggravated penalties up to ten years where disclosure endangers safety or prejudices investigations. Media organisations and legal teams must be alert to suppression orders and prohibited disclosures.
Cross‑jurisdictional reliance on regulations (s3, s48, Pt 5). The Act’s mutual recognition machinery depends on regulations that declare corresponding laws. Until regulations declare a law corresponding, foreign approvals/authorities may not be automatically recognised.
Records and audit frequency (s27-28). The Act requires detailed record contents and audits at least every six months and within six months post‑expiry or cancellation. Operational units must resource record keeping and independent auditing to meet statutory duty.

These are statutory mechanics rather than external commentary. Practitioners should map operational processes to the statutory steps to avoid losing immunity or indemnity, and pay attention to closed‑court, suppression and documentation rules that limit transparency and raise procedural risks.

Compliance for different actors requires procedural steps, documentary practices and supervisory arrangements grounded in the Act’s text. Below are concrete actions linked to statutory provisions.

For law enforcement agencies and chief officers

Approval and authority documentation. Use written forms approved by the chief officer. Under s4(4) and s8 the Act requires approvals and authorities to be in writing, signed, and to include specific information (date/time, participants, nature of authorised conduct, period, issuing agencies, reasons). Implement standardised templates that capture these prescribed data elements and preserve signed originals.
Gatekeeping and record of decision‑making. Before granting an approval or authority, ensure documentary reasoning addressing each statutory criterion: reasonable suspicion of serious criminal behaviour (s4(2)(a)), proportionality and limitation of ambit (s4(2)(b)-(c)), and risk mitigation for inducement (s4(2)(d)). Maintain contemporaneous records of why thresholds were met and consider reference to previous similar applications as required by s4(3).
Supervisory arrangements for authorised civilians. Appoint supervisors for any authorised civilian and ensure supervisors meet rank thresholds (s7(3)-(4)). Document supervisory directions in writing and ensure the civilian acts only under those directions to preserve immunity and indemnity (s19(2)(b)(ii), s20(b)(ii)).
Periodic review and cancellation. Review authorities at least annually and cancel if the grounds no longer exist (s11). Give written notice of variation or cancellation to the authorised person and supervisor with reasons (s10(2)-(3)). Implement workflows that trigger cancellation and BDM cancellation applications where relevant within the 28‑day windows (s13(2)).
Record keeping and audit. Maintain records for each authority as listed in s27(2), including dates, names, assumed identity details, requests made to issuing agencies, nature of duties and financial transactions. Arrange audits at least every six months and after cancellation/expiry (s28(1)). Appoint auditors who are not decision makers or authorised persons under the authorities audited (s28(3)).
Indemnities and regulatory compliance. Ensure written indemnity processes and internal compliance with any regulations prescribed to trigger indemnity obligations under s17 and s20. When requesting evidence from issuing agencies, provide explicit indemnity and ensure prescribed requirements are satisfied.
Annual reporting and information exclusion. Prepare annual reports with the enumerated content (s47(1)) and advise the Minister on material that should be excluded before tabling if publication could endanger safety, prejudice investigations or compromise operations (s47(3)-(4)).

For issuing agencies (government and non‑government)

Responding to requests. Government issuing agencies named in an authority must comply with requests to produce evidence within a reasonable period specified in the request (s14(3)(a)). Create internal procedures for handling lawful requests, ensure verification of the requesting law enforcement agency and the authority, and log compliance.
Immunity and indemnity. Where compliance would otherwise constitute an offence, s16 provides criminal immunity for officers complying with s14 requests. The requesting law enforcement agency must indemnify the issuing agency for liabilities and costs (s17). Seek written indemnity confirmations and confirm any required regulatory formalities are satisfied before compliance.
Cancellation of produced evidence. Be prepared to cancel evidence produced if directed in writing by the law enforcement agency that requested production (s15(1)). Maintain change logs, and for government registries follow court orders under s12 as required.

For courts and legal practitioners

Filing and service of certificates. Ensure witness identity protection certificates are filed before an operative gives evidence and that copies are served on parties at least 14 days before the operative is due to give evidence (s37(1)-(2)). If service time cannot be met, obtain court permission to proceed despite non‑compliance (s37(3)(b)(ii)).
Closed hearings and suppressions. For any application under s40, plan to request hearings in the absence of juries and to seek suppression of publication regarding the application and any evidence given. The court will normally close the court for the application and when the evidence disclosing identity is given (s40(2), (5)-(6)).
Testing credibility: strict threshold. If seeking disclosure of an operative’s identity or material likely to reveal it, prepare to meet the statutory test: evidence that could substantially call into question credibility; impractical to test credibility without risking disclosure; and the interests of justice require testing (s40(3)). Be ready to show why alternatives to disclosure are insufficient.
Jury directions. Where a certificate is filed, the court must direct the jury not to draw adverse inferences or alter weight because of the certificate, unless the court considers direction inappropriate (s39). Prepare submissions on whether the direction is necessary.

For non‑government partners and private sector issuing agencies

Decide whether to comply. Non‑government issuing agencies are not compelled to comply with requests (s14(3)(b)). If choosing to cooperate, secure written indemnity from the requesting law enforcement agency and ensure any regulatory requirements are met so indemnities will apply (s17).
Manage records. If producing evidence or cancelling evidence as directed, maintain internal logs and change histories to ensure legal traceability and to be able to demonstrate compliance with instructions if later challenged.

For journalists, parties and the public

Observe disclosure prohibitions. Be aware that disclosing an operative’s identity or an assumed identity where a certificate or authority applies is an offence (s26, s41) and that disclosure in circumstances intended to endanger safety or prejudice investigations attracts higher penalties. Check for suppression orders under s40 and court orders under s38 to avoid criminal exposure.
FOI and State Records exclusions. Understand that material obtained under the Act is excluded from FOI and State Records access (s46); rely on annual reports and Ministerial tabling (s47) for public information, but expect significant redaction or exclusion.

Operational checklist

Use approved written forms for applications, authorities and approvals and keep signed originals (s4(4), s6(3), s8).
For civilian operatives, document supervisory directions and ensure supervisor meets rank requirements (s7(3)-(4)).
Maintain records specified in s27 and appoint independent auditors for the six‑monthly audit cycle (s28).
When interacting with issuing agencies, secure written indemnities and verify prescribed regulatory steps (s17).
For BDM register entries, pursue Supreme Court orders under s12 and follow closed‑court procedures (s12(3)).
For court filings of witness identity protection certificates, serve timely copies and prepare to litigate under the strict standards in s40.

Following these statutory steps aligns operational practice with the Act’s procedural and evidentiary conditioning of immunity, indemnity and secrecy.

Criminal Investigation (Covert Operations) Act 2009

Plain English Summary

Deep Dive

What it does

Current sections

Criminal Investigation (Covert Operations) Act 2009

Source text: opening excerpt

1 Criminal Investigation (Covert Operations) Act 2009

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