Criminal Investigation (Covert Powers) Regulations 2013

The Regulations revolve around definitional prescription. Four core concepts are shaped by the instrument: "law enforcement officer", "corresponding law", "relevant offence", and "senior officer" or supervisory position. Each concept is given narrow, named content by the Regulations.

• Law enforcement officer (regulation 3). The Regulations declare that a fisheries officer employed in the fisheries department’s Serious Offences Unit holds a prescribed office for the purposes of paragraph (d) of section 3 of the Act. The text therefore construes the Act’s category "law enforcement officer" to include that particular set of fisheries officers, to the extent the Act applies that definition.

• Corresponding law (regulation 4). The Regulations supply three distinct lists of "corresponding law" for different sections of the Act: for the definition in section 5 (reg 4(1)), for the definition in section 44 (reg 4(2)), and for the definition in section 80 (reg 4(3)). Each list names Commonwealth or state/territory statutes and the particular Parts or Chapters to be treated as prescribed laws. The lists differ by reference to the subject-matter (controlled operations, assumed identities, witness identity protection and like topics). Each cited instrument is identified precisely (for example, Crimes Act 1914 (Cth) Part IAB, Part IAC and Part IACA in the three lists respectively).

• Relevant offence (regulation 5). The Regulations set out an enumerated list of statutory provisions whose breach is a "prescribed offence" for the Act’s definition of "relevant offence". The list includes specified sections of the Classification (Publications, Films and Computer Games) Enforcement Act 1996, specified sections of The Criminal Code, specified sections of Fish Resources Management Act 1994 and related fisheries regulations, a subsection of the Misuse of Drugs Act 1981, and enumerated provisions of the Prostitution Act 2000 (reg 5(1)). The instrument contains express caveats that remove certain fisheries and prostitution offences from the "relevant offence" list to the extent those offences attract imprisonment of three years or more (reg 5(2)-(3)).

• Senior officer and supervisors (regulations 6-7). Regulation 6 prescribes the Western Australian state manager (however described) of the Australian Crime Commission as holding a prescribed office in that Commission for purposes of paragraph (b)(ii) of the Act’s definition of "senior officer". It also prescribes the fisheries officer employed as the Executive Director responsible for compliance as a prescribed office. Regulation 7 prescribes fisheries officers in the Serious Offences Unit at or above the level of Supervising Fisheries and Marine Officer as holding a prescribed office for the purpose of section 48(4)(c) of the Act.

The Regulations thus operate as a cross-jurisdictional mapping and an internal agency mapping. They map across jurisdictions by naming other statutes as "corresponding laws" and they map within WA agencies by naming individual offices and positions as holding prescribed offices. The effect is to bring certain external and internal actors and subjects within the Act’s definitional boundaries.

The Regulations affect several categories of actors by name and function.

• Fisheries officers in the Serious Offences Unit. Multiple provisions bring particular fisheries officers into the Act’s definitional scope. Regulation 3 declares that a fisheries officer employed in the fisheries department’s Serious Offences Unit holds a prescribed office for the Act’s "law enforcement officer" definition. Regulation 7 further declares that a fisheries officer in that Unit at or above the level of Supervising Fisheries and Marine Officer holds a prescribed office for the purpose of section 48(4)(c) of the Act. Regulation 6(2) prescribes the fisheries officer serving as Executive Director responsible for compliance as a prescribed office for the Act’s "senior officer" definition. In short, staff in that Unit, specific supervisory grades and the executive compliance officer are pulled into various definitions used by the Act.

• The WA state manager of the Australian Crime Commission. Regulation 6(1) prescribes the person performing the functions of Western Australian state manager (however described) in the Australian Crime Commission as holding a prescribed office for the Act’s senior officer definition (paragraph (b)(ii) of ss 43(1), 79(1) and 105(1) as cited in the Regulations).

• Individuals charged with, or investigated for, prescribed offences. Regulation 5 lists particular statutory provisions that constitute "prescribed offences" for the Act’s definition of "relevant offence" (reg 5(1)). Persons investigated for those specified offences may be subject to covert investigatory measures authorised under the Act (subject to the Act’s own thresholds and procedural requirements). The prescribed offences include particular sections of The Criminal Code, fisheries statutes and regulations, the Misuse of Drugs Act 1981 (one subsection), certain parts of the Classification enforcement regime and specified sections of the Prostitution Act 2000 (with caveats in regs 5(2)-(3)).

• State and interstate/territory agencies involved in controlled operations, assumed identities and witness-identity protections. Regulation 4 prescribes a list of Commonwealth, state and territory statutes as corresponding laws for different definitional hooks in the Act. The inclusion of those provisions means that the Act will, for the purposes of the sections cited, treat the named external provisions as corresponding instruments. Agencies operating under those corresponding statutes will therefore be relevant counterparts where the Act’s provisions require recognition of corresponding law.

• Administrative and compliance staff. Because the Regulations alter who is a "prescribed office" and which offences count as "relevant", agencies (for example, the Department of Fisheries and the Australian Crime Commission’s WA office) must adjust internal delegations, training and record-keeping so that officers designated by the Regulations exercise powers and comply with obligations under the Act. The Regulations also require policy and records updates to reflect the commencement and amendment dates recorded in the compilation table.

The Regulations do not impose direct penalties; they change who is within statutory definitions and which offences or external laws the Act will treat as corresponding laws. Determination of operational effects (what an affected officer may or must do) requires consulting the Act’s substantive provisions referenced by the Regulations.

The Regulations themselves do not prescribe operational duties or private rights; rather they determine who falls into categories that the Act uses to attach duties, restrictions and powers. Therefore the Regulations’ key legal effect is to activate or de-activate particular persons and offences for the purposes of other provisions in the Act. The operative duties and rights remain located in the Act; the Regulations alter the set of actors and offences to which those statutory duties and rights attach.

• Activation of the Act’s duties/rights through designation. By declaring that certain fisheries officers and a named Australian Crime Commission state manager hold prescribed offices (regs 3, 6, 7), the Regulations make those offices subject to the suite of duties, authorisations and limitations the Act attaches to "law enforcement officers", "senior officers" or supervisors. Which particular duties or rights attach depends on the section of the Act that defines or refers to those categories (the Regulations cite the relevant Act sections in the margins, for example Act s 3 in reg 3, ss 43(1), 79(1) and 105(1) in reg 6, and s 48(4)(c) in reg 7).

• Definition of "relevant offence" shaping warranting thresholds. Regulation 5 identifies which statutory breaches amount to "prescribed offences" for the Act’s definition of "relevant offence" (reg 5(1)). The Act will typically tie thresholds for covert investigative powers (such as controlled operations or assumed identity authorisations) to the category of relevant offences; thus the Regulations determine whether a given offence attracts that threshold. The Regulations also exclude certain fisheries and prostitution offences from the prescribed list where they carry imprisonment terms of three years or more (reg 5(2)-(3)), meaning that higher‑penalty offences in those categories fall outside that particular "relevant offence" list as specified.

• Cross‑statutory recognition. Regulation 4’s lists of "corresponding law" determine which Commonwealth and other state/territory enactments are to be treated as corresponding for three separate definitional hooks (in sections 5, 44 and 80 of the Act respectively). The effect is that when the Act refers to the existence of a corresponding law, it will treat the listed provisions as such. That enables cross-jurisdictional or cross-instrument processes the Act contemplates, for example where the Act’s operation depends on mutual recognition of controlled operations, assumed identities or witness protection provisions in other jurisdictions.

• No separate rights or penalties created by the Regulations. The Regulations do not themselves create new rights to information, new obligations to act, nor do they impose fines or imprisonment. Any duties, oversight mechanisms, remedies or penalties referenced by the Act are not replicated or altered directly by the Regulations. The Regulations are limited to prescription and designation; their substantive effect is through the consequent application of the Act.

Users should therefore treat the Regulations as a definitional key that determines who and what the Act will attract its duties, rights and procedural requirements to. To learn what is required of an officer or what statutory safeguards apply to a suspect, consult the Act provisions to which these designations map.

The Regulations contain no independent penalty provisions and do not themselves establish enforcement mechanisms. Instead they feed into the Act’s enforcement architecture by expanding, restricting or clarifying which persons and offences fall within the Act’s scope. Consequently, enforcement and penalty regimes remain those set out in the Act and in the other instruments the Act references as corresponding laws.

• No standalone sanctions in the Regulations. There is no clause in the Regulations that creates criminal offences, civil penalties, or disciplinary processes. Every enforcement consequence that flows from these Regulations is derivative: it is triggered only if the Act, or a corresponding law the Act recognises, prescribes a sanction for conduct by an officer or a suspect.

• Enforcement actors remain those in the Act and corresponding laws. By prescribing particular offices and corresponding laws (regs 3, 4, 6, 7), the Regulations determine which agencies and officers can lawfully be the subject of enforcement proceedings under the Act, or can exercise powers whose misuse might be sanctioned under the Act or other applicable law. For example, where the Act permits covert operations by "law enforcement officers", the designation in reg 3 makes certain fisheries officers eligible to carry out or be regulated in respect of those operations. Any statutory remedies for improper use of powers therefore arise under the Act or an applicable corresponding law.

• Interaction with offences listed in reg 5. Regulation 5 enumerates "prescribed offences" for the Act’s "relevant offence" definition. Where the Act attaches specific investigatory thresholds, authorisations or evidential rules to "relevant offences", those provisions determine how enforcement is executed and what penalties may flow on conviction for the underlying offence. The Regulations’ carve-outs (reg 5(2)-(3)) remove certain higher-penalty fisheries and prostitution offences from the prescribed list, thereby affecting which offences are subject to investigatory measures tied to "relevant offence" status.

• Administrative enforcement burden. Because the Regulations add specific offices and statutory instruments into the Act’s definitional net, administrative compliance, record-keeping and internal oversight obligations will fall to the agencies and officers so designated. The Regulations’ commencement and amendment dates (reg 2 and the compilation table) create discrete points at which those compliance obligations must be implemented or updated.

Practitioners should not infer new criminal liability from the Regulations alone; instead they must trace a regulatory designation back to the specific duty, authorisation or penalty provision in the Act or in a corresponding law identified by the Regulations.

The Regulations are explicitly designed to create interconnections between the Act and a set of Commonwealth and state/territory statutes and to map particular offices within Western Australia into the Act’s framework. The primary mechanism of interaction is prescription: the Regulations name other statutes as "corresponding law" for discrete sections of the Act and name particular offices within WA government as "prescribed offices" to be treated under the Act’s definitions.

• Cross‑jurisdictional recognition (regulation 4). Regulation 4 supplies three separate lists of "prescribed laws" constituting "corresponding law" for three different sections of the Act (s 5, s 44 and s 80 respectively). Each list includes Commonwealth provisions (for example, Crimes Act 1914 Parts IAB, IAC, IACA in the three lists) and particular Parts or Chapters of various state and territory laws dealing with controlled operations, assumed identities or witness identity protection. By doing so the Regulations enable the Act to treat those external provisions as corresponding laws where the Act requires such a determination. That permits the Act to align its procedures, mutual recognitions or authorisation pathways with those external regimes.

• Domestic mapping of roles (regs 3, 6, 7). The Regulations map internal WA offices into the Act’s categories. Declaring that certain fisheries officers and the WA state manager of the Australian Crime Commission hold prescribed offices makes those individuals and positions subject to the Act’s interplay with corresponding law. This internal mapping is necessary for the Act to rely upon or coordinate with federal or interstate processes, or to permit certain officers to act under authorities whose availability rests on being a "law enforcement officer", "senior officer" or supervisor in the Act’s sense.

• Scope-limiting interaction through prescribed offences (regulation 5). By listing which statutory provisions are "prescribed offences" for the Act’s relevant-offence definition, the Regulations create a selective overlap between the Act and substantive criminal law. The presence of express exclusions (reg 5(2)-(3)) means that for certain categories,specifically particular higher-penalty fisheries and prostitution offences,the Act will not treat them as "relevant offences" for the particular purpose the definition in section 5 serves. Thus the Regulations both create and limit the Act’s reach vis-à-vis other criminal statutes.

• Temporal interaction through commencement and amendments. The Regulations’ commencement clause (regulation 2) and the compilation table record when different parts of the instrument took effect, and when amendments altered the lists (for example, reg 4 amended 2016; reg 5 amended 2014; reg 6 amended 2018). Those temporal markers matter for cross-referencing: whether a particular statute or office was prescribed at a given time will affect whether the Act operated against a person or an offence at that time.

• No amendment of other Acts. The Regulations do not themselves amend the text of the external statutes they cite. They operate as an instrument under the Act that points to those statutes for definitional purposes; they do not alter the substantive content or penalties of those other Acts. Any operational interplay between the Act and a corresponding law will be governed by the terms of each Act and by any mutual recognition procedures they prescribe.

In short, the Regulations are a cross-reference device: they align the Act with a defined set of external laws and particular internal offices to create the intended legal network for covert investigatory functions. To understand the full legal effect, one must read the Act together with the listed corresponding laws and the specified sections the Regulations cite.

The Regulations include a compilation table that records the original instrument and three amendment instruments, with their gazettal and commencement particulars. The Regulations also carry inline marginal notes identifying the provisions amended and the Gazette references.

Chronology in the compilation table:

• Criminal Investigation (Covert Powers) Regulations 2013, gazetted 25 January 2013, reg 1 and 2 commenced on that gazettal date; the remainder commenced on 1 March 2013 (see reg 2).
• Criminal Investigation (Covert Powers) Amendment Regulations 2014, gazetted 19 August 2014, with reg 1 and 2 commencing on 19 August 2014 and the other regulations commencing on 20 August 2014 (as recorded).
• Criminal Investigation (Covert Powers) Amendment Regulations 2016, gazetted 12 July 2016, with reg 1 and 2 commencing on that date and other provisions commencing on 13 July 2016.
• Criminal Investigation (Covert Powers) Amendment Regulations 2018, gazetted 17 August 2018, with reg 1 and 2 commencing on 17 August and other provisions commencing on 18 August 2018.

Specific amendments noted in the body:

• Regulation 4 (the lists of corresponding laws) carries a marginal note that it was amended by Gazette 12 July 2016 p. 2863. That indicates the lists of corresponding laws were changed in the 2016 instrument; the Regulations record the revised lists in their current text.
• Regulation 5 (the prescribed offences) carries a marginal note of amendment by Gazette 19 August 2014 p. 2995. That indicates additions or removals in the prescribed offence list were made in 2014; the text now contains the enumerated list and the two carve-out subregulations (5(2)-(3)).
• Regulation 6 (senior officers) carries a marginal note of amendment by Gazette 17 August 2018 p. 2901, indicating the 2018 instrument added or altered the prescribed office list for senior officer purposes.

Practical implications of the amendment history:

• Temporal application. Because the amendments are effective from their recorded commencement dates, whether a person or offence was prescribed at a particular point depends on the date. Users must check the relevant Gazette dates and the compilation table entries to determine historical applicability.
• Incremental tuning. The presence of multiple amendment instruments suggests the Regulations are used as a tuning mechanism to update which offices or offences are in scope without amending the principal Act. This pattern is visible in the targeted amendments recorded against regs 4, 5 and 6.
• Record-keeping. Practitioners should rely on the compilation table and Gazette notices when advising on whether a particular officer or offence was prescribed at a past time. The Regulations themselves include marginal amendment notes that identify the Gazette citations for specific amended provisions.

The Regulations do not include any explanatory memorandum text within the document supplied. The only historical record available in the instrument is the compilation table and the marginal notes indicating Gazette entries and amendment years.

The Regulations, as provided, contain no references to judicial decisions, no reported cases, and do not record any litigation history. There are no statutory notes in the text linking to case law, and the compilation table lists only the instruments and their publication and commencement data.

Consequently, within the source material supplied:

• There are no reported decisions interpreting these Regulations recorded in the instrument.
• The Regulations themselves do not cite or rely on any judicial interpretation; they operate as administrative prescriptions of offices, offences and corresponding laws.
• Any litigation that may have arisen in respect of the Act or these Regulations is not captured in the Regulations’ text or in the compilation table.

Practical guidance for researchers and practitioners:

• If litigation history is material to a particular question,such as whether a designated fisheries officer’s actions under the Act were lawful, or whether a particular prescribed offence attracts or does not attract covert investigatory powers,researchers will need to search case law databases and court reports for decisions citing the Act and these Regulations. That search is outside the Regulations’ text.
• Counsel and advisers should not assume the absence of in-text litigation references equates to absence of judicial commentary. The Regulations are an administrative instrument; judicial interpretation of the Act’s application to the designated offices or prescribed offences may exist and will affect application. The Regulations furnish the starting point for such an enquiry but not its judicial pronouncements.
• For temporal questions,whether a particular office or offence was within scope at a given historical moment,the compilation table and Gazette notices are the primary internal record within the instrument. Any litigation about retrospective or transitional effects would, however, be located in external case law and is not summarised here.

Because the Regulations themselves do not narrate litigation, a litigation-history search must be performed using external legal research tools and the Gazette references in the compilation table to build a timeline against which judicial materials can be compared.

The Regulations are short and tightly framed, but a number of practical pitfalls arise from their structure and the way they interact with the Act. These are matters of legal technique and implementation rather than substantive policy claims. The text of the Regulations contains the specific triggers that can produce surprises if overlooked.

• Designation is narrow and specific. The instrument does not generally declare "all fisheries officers" to be law enforcement officers. It specifies "a fisheries officer employed in the fisheries department’s Serious Offences Unit" (reg 3) and further restricts supervisory status to those at or above the level of Supervising Fisheries and Marine Officer in that Unit (reg 7). Similarly, the Executive Director responsible for compliance is singled out (reg 6(2)). If an agency assumes a broader sweep,thinking any fisheries officer is captured,that will be incorrect. Practitioners must test against the precise wording used in the Regulations.

• Carve-outs based on penalty thresholds. Regulation 5(2) and (3) exclude certain fisheries and prostitution offences from the prescribed list "to the extent that the offence is punishable by imprisonment for 3 years or more". That qualification requires a sentencing or penalty assessment. The "to the extent" language means the Regulations bifurcate application by penalty quantum: a particular statutory provision may be within the prescribed list for some factual variants (lesser penalty) and outside it for others (where the provision carries 3 years+). Advisers need to check the current penalty schedules and any different modes of offence under the cited Acts to determine whether an individual charge falls within the prescribed list.

• Temporal effects and amendments. The lists in regulation 4 and regulation 5 were amended in 2016 and 2014 respectively (marginal notes). Whether a given external law or offence was prescribed at an earlier time depends on the amendment dates recorded in the compilation table. Counsel must verify which version of the Regulations applied at the relevant time rather than assume the present text was always in force.

• Regulatory, not substantive. The Regulations do not create powers; they define who and what fall within the Act’s scope. Failure to read the Act together with these Regulations is a common error. For operational decisions,whether an officer can lawfully engage in a controlled operation, or whether a warrant is available,consult the Act’s substantive authorisations, not the Regulations alone.

• Precise cross-references to external Parts and Chapters. Regulation 4 prescribes particular Parts or Chapters of other statutes (for example, Part IAB of the Crimes Act 1914 (Cth) in reg 4(1)(a)). When assessing cross-jurisdictional cooperation, one must confirm that those named Parts have retained the same numbering and subject matter; amendments to external statutes after the relevant commencement date could affect applicability.

• No internal policy direction. The Regulations name offices; they do not direct agencies on internal governance, training or record-keeping. Agencies must therefore create or update internal instruments to give effect to the designations. Failure to do so may create procedural vulnerabilities when a court reviews whether a particular covert operation complied with statutory authorisation.

• Siloed subject matter. The prescribed offences in regulation 5 mix different subject domains (classification enforcement, general criminal law provisions from The Criminal Code, fisheries offences, drug offences, prostitution offences). Practitioners must be careful not to treat the list as a single homogeneous category; the Act’s thresholds and procedural safeguards may operate differently depending on the underlying offence and the statutory context.

• Gazette references are decisive for historical questions. The compilation table supplies gazettal and commencement data. For retrospective legal questions, these dates matter; the Regulations’ present text does not by itself show what applied before an amendment.

Attention to these technical details will prevent misapplication of the Regulations’ narrow prescriptions and will ensure that advice or operational decisions are mapped to the correct statutory instruments and time frames.

Compliance with the regulatory prescriptions requires administrative and legal steps by affected agencies and advisers. Because the Regulations function as definitional instruments, compliance tasks are primarily about ensuring the right people, offices and offences are recognised and that internal procedures are aligned with the Act’s substantive requirements.

Immediate practical steps:

1. Map personnel against prescribed offices. Agencies (notably the fisheries department and the WA office of the Australian Crime Commission) should verify whether particular employees occupy the offices identified in regs 3, 6 and 7. For example, confirm who is employed in the Serious Offences Unit and which officers meet the "Supervising Fisheries and Marine Officer" level. Also confirm the title and incumbent performing the WA state manager role of the Australian Crime Commission (reg 6(1)) and the Executive Director responsible for compliance (reg 6(2)).

2. Update delegations and authorities. Where the Act confers powers or duties on "law enforcement officers", "senior officers" or supervisors, agencies should update formal delegations and internal instruments so that the individuals and offices prescribed by the Regulations are authorised, trained and documented as holding those responsibilities.

3. Record commencement and amendment dates. Note the commencement structure in regulation 2 (regulations 1 and 2 on Gazettal day; the rest on 1 March 2013) and the subsequent amendment commencement dates recorded in the compilation table. For legal advice about past events, cross-check which version of the Regulations applied at the relevant date.

4. Create a prescribed offences checklist. Build an itemised list from regulation 5(1) of the statutory provisions that are prescribed as relevant offences, and include the carve-outs in regs 5(2)-(3). For each offence, record the maximum penalty to determine whether the 3‑year imprisonment carve-outs apply in particular factual scenarios.

5. Train and inform designated officers. Provide targeted training to fisheries officers in the Serious Offences Unit, Supervising Fisheries and Marine Officers, the Executive Director responsible for compliance and the WA state manager of the Australian Crime Commission (as described in regs 3, 6 and 7). Training should cover the Act’s substantive authorisations and safeguards, record-keeping requirements for covert operations, and the boundaries of authorised activity.

6. Coordinate with counterpart agencies under corresponding laws. Because regulation 4 prescribes a list of corresponding laws across jurisdictions, agencies should establish contact and memoranda of understanding with interstate and Commonwealth counterparts where cross-jurisdictional controlled operations, assumed identities or witness identity protections are likely to be used.

7. Internal auditing and documentation. Implement internal control systems to document when and how covert powers are used by persons who are prescribed under these Regulations, so that any review under the Act’s oversight provisions can verify that only those authorised by the Act and by these Regulations engaged in the activity.

8. Legal review before action. For each proposed covert investigatory step, legal officers should check the Act’s authorising sections together with these Regulations to confirm the relevant officer is a "law enforcement officer" or senior officer as defined. Because the Regulations are prescriptive and narrow, a targeted legal clearance will be necessary to avoid procedural invalidity.

9. Historical compliance checks. For actions taken near amendment dates, check the applicable version of the Regulations using the compilation table and Gazette references to ensure the office or offence was prescribed at the time.

10. Record the regulatory instruments. Keep copies of the Gazette notices and the compilation table entries listing the 2013 instrument and the 2014, 2016 and 2018 amendment regulations (as recorded in the compilation table). These documents are necessary to prove the timing and content of the prescriptions in any subsequent review.

Who pays and who decides:

• Agencies bear the administrative cost of updating delegations, training and record-keeping for officers prescribed by the Regulations. They must also decide, internally, who within the agency is to exercise powers that the Act confers on the newly prescribed offices.
• Legal advisers and compliance officers must bear the burden of checking whether a given offence or office is prescribed at the relevant time before authorising covert action, because the Regulations change the definitional scope that triggers statutory authorisations.

In short, compliance is procedural and documentation-heavy: align personnel lists and delegations to the precise wording of regs 3, 6 and 7; operationalise reg 5’s list of prescribed offences and its carve-outs; and use reg 4’s lists to guide cross-jurisdictional coordination under the Act.