Law Enforcement and National Security (Assumed Identities) Regulation 2024

This regulation (Law Enforcement and National Security (Assumed Identities) Regulation 2024) updates and restates which agencies, positions and ranks are treated as falling within certain definitions in the Law Enforcement and National Security (Assumed Identities) Act 2010 (the Act). It commences on 1 September 2024 (reg 2). Mechanically, the regulation does not itself create new substantive powers; it prescribes which entities and classes of personnel are to be treated as a “law enforcement agency”, a “chief officer”, a “law enforcement officer”, a “supervisor for authorised civilians” and a “senior officer” for the Act’s purposes (regs 4-8). It also identifies the Commonwealth and state/territory statutes that count as “corresponding law” for the Act (reg 9) and preserves the effect of acts, matters and things authorised under the previous 2016 Regulation (reg 10).

The regulation operates by textual substitution into the Act’s definitional framework. It does so in a targeted way: each prescription is framed as “For the Act, section X(1) (or other specific provision), the following … are prescribed,” and then lists agencies, positions, ranks or statutes (regs 4-9). For example, for the Act, s 4(1), definition of law enforcement agency, paragraph (g), the regulation prescribes three agencies: the Australian Federal Police, the Australian Secret Intelligence Service and the Australian Taxation Office (reg 4). For the Act, s 4(1), definition of chief officer, paragraph (g), the regulation prescribes the Commissioners or Director-General of those agencies as appropriate (reg 5). For the Act, s 4(1), definition of law enforcement officer, paragraph (g), the regulation prescribes senior and ordinary employees and certain statutory office-holders for each listed agency (reg 6). The regulation provides rank or classification thresholds for supervisors of “authorised civilians” under the Act (reg 7) and sets out which positions qualify as “senior officer” for delegations under the Act (reg 8). Reg 9 lists the state and Commonwealth statutes that are to be treated as “corresponding law” for the Act.

The regulation is a consolidation and update of the prescriptive material previously contained in the Law Enforcement and National Security (Assumed Identities) Regulation 2016, which is repealed on the commencement date by operation of the Subordinate Legislation Act 1989, s 10(2) (reg 2, note). Reg 10 ensures that acts, matters or things that had effect under the 2016 Regulation immediately before its repeal continue to have effect under the 2024 Regulation. In short, the instrument fixes the perimeter of who and which statutory regimes the Act governs by naming the agencies and the ranks and offices whose occupants will be treated as authorised to act within the Act’s assumed-identity framework.

The regulation is primarily about definitions and prescription: it populates the Act’s definitional hooks with concrete agency and position names (regs 3-9). The main concepts are therefore administrative categories that the Act depends upon.

• “Law enforcement agency” (reg 4). The regulation prescribes three named Commonwealth bodies,Australian Federal Police, Australian Secret Intelligence Service (ASIS) and the Australian Taxation Office (ATO),for the Act’s definition in s 4(1), paragraph (g). By doing so, those agencies are brought within the legal category that the Act addresses.

• “Chief officer” of a law enforcement agency (reg 5). The regulation identifies by position title the persons who are the Act’s “chief officer” for each prescribed agency: the Commissioner of the AFP, the Director‑General of ASIS, and the Commissioner of Taxation. These are the office‑holders who will exercise any chief‑officer functions the Act confers (as the Act’s definitions and operative provisions specify).

• “Law enforcement officer” (reg 6). The regulation prescribes, for each agency, which categories of personnel count as law enforcement officers under the Act. For the AFP this includes Deputy Commissioners, AFP employees (as defined in the AFP Act), and special members of the AFP. For ASIS it is a staff member of the Service. For the ATO it includes the Second Commissioner of Taxation and persons engaged under the Public Service Act 1999 performing duties in the Office.

• “Supervisors for authorised civilians” (reg 7). Where the Act contemplates the use of authorised civilians, the regulation fixes the minimum rank or classification required to supervise such persons: for the AFP the rank of sergeant or equivalent, for ASIS the position of ASIS Executive Level 1 or equivalent, and for the ATO an APS Executive Level 1 or equivalent in the Office.

• “Senior officer” for delegations (reg 8). For the Act, s 39(4), the regulation specifies the ranks or positions that qualify as senior officers who may receive certain delegations: senior executive AFP employees, Deputy Commissioners, equivalent positions for the AFP; the Deputy Director‑General, Operations for ASIS; and for the ATO the Second Commissioner and Senior Executive Service employees.

• “Corresponding law” (reg 9). The regulation lists a set of state, territory and Commonwealth statutes (with chapters/parts cross‑referenced) that the Act treats as “corresponding law”. That list includes Victorian, ACT, SA, WA, Tasmanian, Queensland and Northern Territory statutes dealing with assumed identities, covert investigations or police powers, and Part IAC of the Crimes Act 1914 (Commonwealth).

The regulation affects three groups directly and others indirectly by enabling the Act to apply to them.

Directly affected public bodies and office‑holders

• Australian Federal Police (AFP): reg 4(a) makes the AFP a prescribed “law enforcement agency” for the Act. Reg 5(a) prescribes the Commissioner of the AFP as the chief officer (reg 5(a)). Reg 6(a) prescribes that Deputy Commissioners, AFP employees (as defined in the AFP Act) and special members are “law enforcement officers” for the Act. Regs 7(a) and 8(a) fix the supervision and senior officer thresholds: sergeant or higher for supervising authorised civilians and senior executive employees/Deputy Commissioners or equivalent for delegations (regs 7(a), 8(a)).

• Australian Secret Intelligence Service (ASIS): reg 4(b) prescribes ASIS as a law enforcement agency under the Act. Reg 5(b) prescribes the Director‑General of ASIS as chief officer. Reg 6(b) prescribes ASIS staff members as law enforcement officers. Reg 7(b) and reg 8(b) set ASIS Executive Level 1 (or equivalent or higher) as supervisors and the Deputy Director‑General, Operations as the senior officer for delegations.

• Australian Taxation Office (ATO): reg 4(c) prescribes the ATO as a law enforcement agency. Reg 5(c) prescribes the Commissioner of Taxation as chief officer. Reg 6(c) prescribes the Second Commissioner and persons engaged under the Public Service Act 1999 performing duties in the Office as law enforcement officers. Reg 7(c) requires that supervisors of authorised civilians be APS Executive Level 1 (or equivalent or higher) in the Office; reg 8(c) prescribes the Second Commissioner and Senior Executive Service employees as senior officers.

Indirectly affected persons and entities

• Law enforcement officers and authorised civilians engaged by those agencies: persons within the categories listed in reg 6 will be treated as “law enforcement officers” under the Act; authorised civilians will require supervision at the prescribed rank/level (reg 7). That changes the set of people who can be authorised to use or be supervised in assumed‑identity operations under the Act’s framework.

• Agency HR, legal and compliance functions: the prescriptions impose an administrative requirement to identify who falls within each class (for example, identifying which officers are “senior executive AFP employees” or the “ASIS Executive Level 1” equivalents). Agencies must align their internal classification and supervision arrangements to match the thresholds in regs 7-8.

The regulation itself does not create novel substantive duties or rights; instead it operationalises the Act’s duties and rights by specifying who counts as a relevant actor under the Act (regs 4-9). The practical effect is to determine which agencies, which office‑holders and which categories of staff will be subject to the Act’s duties, powers and procedural rights.

Allocation of decision‑making authority

• Chief officers: reg 5 identifies the persons who will exercise the Act’s chief‑officer functions for each prescribed agency: Commissioner of the AFP, Director‑General of ASIS and Commissioner of Taxation (reg 5(a)-(c)). Any duties, responsibilities or functions the Act attaches to “chief officers” will therefore fall to these office‑holders in relation to the prescribed agencies.

• Senior officers for delegations: reg 8 prescribes who qualifies as a “senior officer” for delegations under the Act, including the AFP’s senior executive employees and Deputy Commissioners, ASIS’s Deputy Director‑General, Operations, and the ATO’s Second Commissioner and Senior Executive Service employees. The positions listed will have the right to receive certain delegations under the Act (as the Act provides).

Supervision and authorised civilians

• Supervisors: reg 7 sets which ranks/positions are acceptable supervisors of authorised civilians (sergeant or higher for AFP, ASIS Executive Level 1 for ASIS, APS EL1 for the ATO). The Act’s provisions that condition the use of authorised civilians on appropriate supervision will therefore be implemented through the persons in these ranks. The effect is to channel supervisory responsibility to middle management and above.

Who becomes a “law enforcement officer”

• The definitions in reg 6 determine who is a law enforcement officer for the Act’s purpose. Reg 6 cross‑references external employment categories (for example, “AFP employee within the meaning of the AFP Act”; “person engaged under the Public Service Act 1999 and performing duties in the Australian Taxation Office”). By doing so, the regulation ties who has the Act’s law‑enforcement‑officer status to employment status under other statutory regimes. That status triggers any duties, immunities, procedural rights or obligations the Act confers upon law enforcement officers.

Procedural implications and institutional duties

• Because the regulation integrates specific statutory office‑holders and employee classes into the Act’s framework, the agencies listed must perform whatever administrative duties the Act requires of “law enforcement agencies”, “chief officers” and “senior officers” (for example, internal oversight, record‑keeping, reporting, delegations). The regulation does not itself specify those duties; it places the agencies and named office‑holders within the Act’s scope so the Act’s procedural provisions will apply to them.

The regulation contains no penalty provisions of its own. It operates exclusively by prescription into the definitional sections of the Act (regs 3-9) and by a savings provision (reg 10). Any criminal or civil penalties, enforcement mechanisms, administrative sanctions or oversight arrangements relevant to assumed‑identity operations derive from the Act and other statutes, not from the regulation text itself.

Enforcement mechanisms (source linkage)

• The regulation’s enforcement consequences therefore flow from the Act. Where the Act makes compliance mandatory, prescribes offences, or sets out sanctions for misuse of assumed identities, those enforcement mechanisms will apply in relation to the agencies and persons the regulation prescribes. The regulation’s role is to determine which agencies and positions are within the Act’s enforcement perimeter by virtue of being defined as “law enforcement agency”, “chief officer”, or “law enforcement officer” (regs 4-6).

Agency accountability and internal oversight

• By designating particular ranks and classifications as supervisors for authorised civilians (reg 7) and senior officers for delegations (reg 8), the regulation channels internal accountability lines. Those channels will be the routes through which internal enforcement or compliance actions under the Act are managed (for example, revocation of authorisations, internal disciplinary steps or referral to external oversight bodies), to the extent the Act contemplates such processes.

Practical enforcement implications

• Because the regulation treats certain office‑holders as chief officers and senior officers, any statutory duties to make and record delegations, to authorise assumed‑identity operations, to keep records or to report to oversight bodies will be anchored to those named positions. That has operational significance for enforcement: a supervising sergeant or ASIS Executive Level 1 will be the person identified in internal processes as responsible for ensuring authorised civilians operate within authorised bounds (reg 7).

No independent penalty creation

• The regulation does not create novel offences, fines or enforcement pathways. It does not alter the Act’s written enforcement penalties or procedures. Its enforcement effect is entirely referential: by naming which staff and offices are within the Act’s scope, it determines who is subject to enforcement under the Act.

Because the regulation is a definitional instrument, anyone concerned about penalties must consult the Act for the substantive enforcement provisions and any oversight or reporting obligations it imposes on the classes the regulation prescribes.

The regulation explicitly interacts with the Act and a suite of other statutes by cross‑reference and by incorporation of employment classifications and comparable state/territory regimes.

Direct interaction with the Act

• Each prescription in the regulation is expressed as being “for the Act” at particular cross‑references (for example, “For the Act, section 4(1), definition of law enforcement agency, paragraph (g) …” in reg 4). That means the regulation functions as a regulatory supplement to the Act’s definitions. Its effect is to expand or specify the classes to which the Act applies by naming agencies, positions and employee classes.

Interaction with Commonwealth employment statutes and the AFP Act

• Reg 3 defines “AFP Act” as the Australian Federal Police Act 1979 for purposes of the regulation. Reg 6(a)(ii) and (iii) and reg 8(a)(i)-(iii) reference categories defined under the AFP Act (for example, “AFP employee”, “Deputy Commissioner”, “special member”). Reg 6(c)(ii) and reg 8(c)(ii) reference the Public Service Act 1999 and Senior Executive Service employees. By doing this, the regulation anchors the Act’s application to statutory employment classifications established under separate Commonwealth statutes. Changes to those external statutes or to the internal classifications they create will therefore affect who the Act treats as a law enforcement officer or senior officer. The regulation thus creates an interdependence: a person will be within the Act’s scope only if their employment status under the AFP Act or the Public Service Act makes them so.

Interaction with state and territory laws

• Reg 9 designates a list of state and territory statutes (and specific parts/chapters) as “corresponding law” for the Act, including the Victorian Crimes (Assumed Identities) Act 2004, ACT Crimes (Assumed Identities) Act 2009, Part IAC of the Commonwealth Crimes Act 1914, and specific parts of South Australian, Western Australian, Tasmanian, Queensland and Northern Territory statutes. The regulation therefore sets out which non‑Commonwealth statutes the Act treats as corresponding regimes, which is relevant for inter‑jurisdictional recognition, cooperation or application provisions the Act might contain. The effect is to align the Act’s operation with those provisions where the Act invokes “corresponding law”.

Interaction risks and administrative coupling

• Because the regulation repeatedly relies on external classification systems (“AFP employee within the meaning of the AFP Act”; “person engaged under the Public Service Act 1999”), any reorganisations, renamings, or classification‑level changes in those external regimes will require administrative work to map titles and equivalences back to the regulation’s thresholds. The “equivalent or higher” language (regs 7(a), 8(a)(iii)) creates an interpretive link between an agency’s internal rank structure and the prescribed thresholds; agencies will need to document equivalence decisions.

The regulation’s amendment history in the source text is brief and explicit.

• Replacement of the 2016 Regulation: The 2024 Regulation replaces the Law Enforcement and National Security (Assumed Identities) Regulation 2016. Reg 2 states that the 2024 Regulation commences on 1 September 2024 and that it replaces the 2016 Regulation, which is repealed on 1 September 2024 by the Subordinate Legislation Act 1989, s 10(2) (reg 2, note). Reg 10 provides that acts, matters or things that had effect under the 2016 Regulation immediately before its repeal continue to have effect under the 2024 Regulation (reg 10).

• New prescriptions: The 2024 Regulation contains the substantive prescriptions (regs 3-9) as the operative text for the Act’s definitional provisions. The source does not provide a prior‑text comparison within the instrument itself, so the text does not set out what differences, if any, were made compared with the 2016 Regulation. The only explicit amendment history recorded in the regulation is its commencement and its effect in replacing the 2016 Regulation.

• References to other statutes: The regulation incorporates definitions and external bodies by referring to the AFP Act (defined in reg 3) and the Public Service Act 1999 (reg 6(c)(ii), reg 8(c)(ii)). Thus, any later amendments to those external statutes will interact with this regulation but are not recorded here as amendments to the regulation itself.

• No in‑text amendment timeline: The regulation does not contain clauses documenting prior amendments or versions; it is presented as the operative instrument commencing 1 September 2024. The regulation does not list any earlier amendments to itself, nor does it contain metadata about changes from the 2016 Regulation. The regulation’s savings provision (reg 10) functions as a transition device.

For practitioners, the practical consequence of this short amendment history is that the 2016 Regulation’s authorisations continue to have effect through the transition date and that the 2024 Regulation is the operative prescriptive instrument from 1 September 2024. If a user requires a line‑by‑line change log between the 2016 and 2024 Regulations, that is not supplied in the text and would need to be sourced from legislative records or consolidated versions outside the regulation itself.

The regulation text contains no litigation history. It names no cases, makes no reference to judicial decisions, and includes no notes about prior litigation concerning its prescriptions or the Act’s application. Therefore, the primary source provides no case law to cite or to indicate precedential disputes over the definitions it prescribes.

Potential points of legal contest (based on the regulation’s mechanics)

• Equivalence determinations: The regulation uses “equivalent or higher” language for supervisory and senior officer thresholds (regs 7(a), 7(b), 8(a)(iii)). Disputes could arise in practice about whether a particular position in an agency is “equivalent” to the prescribed rank. Such disputes would hinge on organisational charts, remuneration classifications, or statutory instruments that define equivalence. The regulation itself does not resolve how equivalence is to be determined.

• Cross‑statutory interpretation: Because reg 6 ties the Act’s definition of “law enforcement officer” to categories defined in the AFP Act and the Public Service Act 1999, litigation could focus on whether an individual’s employment or engagement status under those Acts brings them within the Act’s scope. The regulation does not spell out evidentiary or administrative processes for proving such status.

• Transition issues preserved by savings: Reg 10 carries across “acts, matters or things” that had effect under the 2016 Regulation. In practice, litigation could concern whether a particular authorisation under the 2016 Regulation validly continued to have effect under the 2024 Regulation, particularly where administrative records are incomplete or where the authorisation’s scope is ambiguous.

• Interaction with corresponding laws: Reg 9 lists state and territory statutes as “corresponding law.” If the Act engages cooperative or recognition mechanisms with those laws, litigation might arise about whether particular state provisions qualify as corresponding in a particular factual scenario. The regulation sets the list, but factual disputes about applicability in complex cross‑jurisdictional operations could lead to legal challenge.

No recorded cases in the instrument

• The regulation does not report any judicial interpretation, declarations, or prior contested decisions. Practitioners will need to consult the Act, any oversight body reports, and external case law dealing with the Act or the statutory regimes listed in reg 9 to identify litigation relevant to assumed‑identity operations.

Several practical issues arise from the regulation’s drafting choices and its role as a definitional instrument. These are concrete points that may catch administrators and lawyers if not addressed.

1. “Equivalent or higher” language creates interpretive work (regs 7(a), 7(b), 8(a)(iii)). The phrases “equivalent or higher rank” and “equivalent or higher position” require agencies to make and record decisions about equivalence. The regulation does not specify criteria for equivalence. Agencies will need to document the basis for any equivocation, for example by reference to remuneration bands, organisational structures, classification authorities, or internal instruments.

2. Reliance on external employment definitions (reg 6). Reg 6 cross‑references categories defined in the AFP Act and the Public Service Act 1999. That ties the Act’s reach to the contours of those employment statutes. As a result, restructures, reclassifications, or contractual changes in those employment frameworks will affect who qualifies as a law enforcement officer under the Act. Agencies must track such changes to maintain compliance.

3. Supervisor thresholds may restrict use of authorised civilians (reg 7). The regulation fixes supervision of authorised civilians to a minimum rank or classification. If an agency’s middle management layer is thin, or if geography or operational constraints make deployment of a person at that rank impractical, the supervision rule could constrain the use of authorised civilians in practice. The regulation does not provide alternatives where the named rank is unavailable.

4. Delegation routes are positionally anchored (reg 8). By specifying particular positions as “senior officers” for delegations, the regulation concentrates the power to accept delegations in a narrow set of roles. If those positions are vacant or occupied on an acting basis, agencies must check whether acting incumbents qualify as the regulation contemplates and keep records accordingly.

5. Continuity vs clarity in savings (reg 10). Reg 10 keeps in effect “acts, matters or things” authorised under the 2016 Regulation. That preserves continuity but can create evidentiary challenges where administrative records from the earlier regime are incomplete. Agencies should proactively compile and reconcile old authorisations against new position titles to avoid gaps.

6. Corresponding law list fixes a finite set of statutes (reg 9). The regulation lists specific parts of state and territory statutes as corresponding law. If a practitioner assumes that all police powers statutes count as corresponding, they may be mistaken; only the listed statutes and parts are included. Amendments to those statutes could affect correspondence in practice, and the regulation does not automatically update when state statutes change.

For the three prescribed agencies (AFP, ASIS, ATO) and their legal, HR and compliance teams, compliance requires translating the regulation’s definitional prescriptions into concrete administrative actions. The steps below flow directly from the regulation’s operative clauses (regs 3-10).

1. Map personnel to prescribed categories

• Establish a roster that maps current staff to the regulation’s categories in reg 6: identify who is an AFP Deputy Commissioner, who is an AFP employee or special member (per the AFP Act), which ASIS staff are covered, and which ATO staff are engaged under the Public Service Act 1999 or are Senior Executive Service employees or the Second Commissioner (reg 6(a)-(c)). This is necessary because the regulation’s effect is to make those persons “law enforcement officers” for the Act.

2. Confirm chief officer and senior officer incumbents

• Record and, where necessary, publish internally who is the agency’s chief officer (Commissioner of AFP, Director‑General of ASIS, Commissioner of Taxation) and which positions meet the “senior officer” threshold for delegations (reg 5, reg 8). Where acting appointments exist, legal teams should confirm whether acting incumbents meet the regulation’s textual requirements and ensure delegations are validly made.

3. Define and document “equivalent” positions

• For provisions that allow “equivalent or higher” ranks or positions (regs 7(a), 7(b), 8(a)(iii)), develop a documented equivalence policy: set criteria (salary band, classification level, operational responsibilities) that will be used to determine equivalence. Keep contemporaneous records of each equivalence decision to support later scrutiny or challenge.

4. Adjust supervision arrangements for authorised civilians

• For any authorised civilian arrangements, ensure that supervision is provided by personnel at the prescribed minimum levels (sergeant for AFP, ASIS EL1 for ASIS, APS EL1 for ATO) (reg 7). Where operations previously relied on different supervisory arrangements, revalidate authorisations or reassign supervisory responsibility to meet the regulation’s thresholds.

5. Review delegation instruments

• Audit existing delegation instruments against reg 8 to ensure delegations are conferred by persons who satisfy the regulation’s senior officer definitions. If delegation lines run through persons no longer covered (because of reclassification or vacancy), amend delegations promptly.