Law Enforcement (Controlled Operations) Act 1997

The Act primarily affects four categories of actor.

First, the law enforcement agencies listed in s 3(1): the NSW Police Force, the Independent Commission Against Corruption, the New South Wales Crime Commission, the Law Enforcement Conduct Commission, and any additional agencies prescribed by regulation (presently including the Australian Federal Police, Australian Crime Commission and Commonwealth Department of Immigration and Border Protection when acting in New South Wales). Each agency’s chief executive officer (Commissioner of Police, Chief Commissioner of ICAC, etc.) is the decision-maker for authorities.

Second, law enforcement officers and civilian participants. A law enforcement officer is broadly defined to include officers or employees of any listed agency, secondees, and members of any other State, Territory or foreign police force (s 3(1)). Civilian participants may be authorised only where it is wholly impracticable for a law enforcement participant to perform the relevant aspect of the operation (s 7(3)). Both classes are “participants” once named in an authority.

Third, the Inspector of the Law Enforcement Conduct Commission, who performs the monitoring and reporting functions in Part 4. The Inspector’s staff may also receive delegated inspection functions (s 29(6)).

Fourth, ancillary actors: the Director of Public Prosecutions (who must be notified of any evidence obtained through an authorised operation – s 26), courts, tribunals and royal commissions (who must protect participant identity under s 28), and the State itself (which bears indemnity obligations under s 20M for cross-border operations and compensation liability under s 20P for property loss or damage).

The Act binds the Crown in all capacities (s 25). Corresponding participants from other jurisdictions receive the benefit of mutual recognition under s 20S.

Duties fall heaviest on chief executive officers. They must determine applications only after considering the mandatory matters in s 6(3) and (4), refuse any application that would breach s 7 limits, ensure a code of conduct is prescribed before any authority can be granted (s 6(2)), and maintain detailed records of urgent authorities and variations (ss 8(5), 10(8)). They must notify the Inspector within 21 days of granting any authority or variation or receiving a completion report (s 21(1)), and supply further information if required. For cross-border operations, additional duties arise under ss 20I and 20J to keep formal applications, authorities, variations, cancellation orders and reports, and to maintain a register containing 19 specified categories of information.

Principal law enforcement officers must cause a report on the operation to be given to the chief executive officer within two months of completion (s 15(1)) and, for cross-border operations involving property loss or serious damage, report that fact immediately (s 20Q(1)). The chief executive officer must then take reasonable steps to notify the owner unless notification would compromise the operation, identities, safety, legal proceedings or the public interest (s 20Q(2)–(3)).

Participants’ key right is the immunity conferred by s 16 (or, for cross-border operations, ss 20K and 20L). Provided the conduct is authorised by and engaged in in accordance with the authority, it is not unlawful and does not constitute an offence or corrupt conduct. Section 20O extends that protection to participants who are unaware (and not reckless as to) any variation or cancellation. Section 19 excludes personal civil liability for chief executive officers, principal and secondary officers, participants and persons acting under their directions, provided they act in good faith. For cross-border operations the State itself indemnifies participants (s 20M).

Participants also benefit from assumed-name protections (s 17) and the evidentiary certificate mechanism in s 27: a certificate signed by the chief executive officer stating that the officer was satisfied of specified matters is conclusive evidence of that fact.

The Inspector has rights of inspection (s 22) and the ability to make special reports to Parliament. Courts and tribunals must hold proceedings in private and suppress evidence where participant identity is in issue, unless the interests of justice require otherwise (s 28).

The Act creates two tiers of disclosure offence in s 20R, applicable only to cross-border and corresponding operations. Intentionally, knowingly or recklessly disclosing information known or suspected to relate to such an operation, where the person knows or is reckless as to the fact that the disclosure is not permitted by the statutory exceptions, carries two years’ imprisonment (s 20R(1)). If the person intends to endanger health or safety or prejudice the operation, or knows or is reckless that the disclosure will have that effect, the maximum rises to 10 years (s 20R(2)). The aggravated offence is indictable but may be dealt with summarily unless election is made (s 20R(3)).

Breach of a code of conduct prescribed under s 20 is not a criminal offence but is deemed misconduct for disciplinary purposes (s 20(5)). Contravention of a suppression order made under s 28(2) carries 50 penalty units or 12 months’ imprisonment or both (s 28(3)).

Enforcement of the Act’s procedural requirements is largely administrative. Defective applications or authorities are saved by s 13A unless the defect affects the substance in a material particular. The Inspector’s annual inspections and reports to Parliament constitute the primary external enforcement mechanism. There is no private right of action for breach of the Act’s procedural provisions; the remedy for participants who exceed their authority is potential criminal liability for the underlying offence.

The Act is expressly stated not to affect prosecutorial, evidentiary or sentencing discretions (s 3A(1)–(2)). However, s 3A(3A) modifies the ordinary discretion to exclude evidence: where evidence is obtained by a participant or corresponding participant through authorised controlled conduct, the mere fact that the conduct was criminal is to be disregarded.

Section 17(2) carves out births, deaths and marriages registers from the assumed-identity immunity. Section 5(2A)(f) requires disclosure in an application if a listening device or optical surveillance device is to be used otherwise than under a warrant issued under the Surveillance Devices Act 2007. Section 20N provides that the immunities in ss 20K and 20L do not apply to conduct that could have been authorised under laws dealing with arrest, search, forensic procedures, telecommunications interception, assumed identities or other investigative powers; those powers must be exercised under their own statutory regimes.

Schedule 1 lists corresponding laws of the Commonwealth (Crimes Act 1914 Pt 1AB), Queensland, Victoria, the ACT, Tasmania and Western Australia. Section 20S applies most of the protective provisions of the New South Wales Act to corresponding authorities as if they were local authorities. Section 4 permits regulations to update the Schedule.

The Act is linked to the Law Enforcement Conduct Commission Act 2016 for oversight functions (ss 22(2), 24(2)) and to the Criminal Procedure Act 1986 for the summary disposal of the s 20R(2) offence (s 20R(3)). Codes of conduct may only be prescribed on the recommendation of the Inspector (s 20(4)).

The amendment history recited in the text reveals three main waves of change. The Law Enforcement (Controlled Operations) Amendment Act 1999 (No 79) substantially rewrote the authorisation and variation provisions, introduced the concept of secondary law enforcement officers, inserted s 3A on non-interference with discretions, and added the defect-saving provision (s 13A). These changes responded to operational experience that showed the original 1997 scheme was too rigid for urgent situations and did not adequately protect participants who relied on authorities that were later varied or cancelled.

The Law Enforcement (Controlled Operations) Amendment Act 2006 (No 14) was the most transformative. It inserted the entire Part 3A to implement the national model for cross-border controlled operations agreed by the Standing Committee of Attorneys-General. The amendments aligned New South Wales with the Commonwealth, Victoria, Queensland and other jurisdictions, introduced the concepts of “controlled conduct” and “relevant offence”, added the illicit-goods minimisation criterion (s 20D(2)(d)), imposed State indemnity (s 20M), created the unauthorised-disclosure offences (s 20R), and expanded record-keeping and register obligations (ss 20I, 20J). The duration of urgent cross-border authorities was lengthened to seven days and formal authorities shortened to three months (s 20F), reflecting the greater complexity of multi-jurisdictional operations. Retrospective authority was excluded for cross-border operations (s 20A(2)).

Subsequent amendments have been largely machinery. The Law Enforcement Conduct Commission Act 2016 (No 61) updated references to replace the Police Integrity Commission and Police Complaints Commission with the new Law Enforcement Conduct Commission and its Inspector. The Criminal Legislation Amendment Act 2013 (No 16) refined the secondary-officer provisions (ss 8(2)(b1), 13B) and made minor adjustments to application and register requirements. Regulation-making powers have been used to update Schedule 1 as additional jurisdictions enacted compatible legislation.

These changes reflect a policy shift from a purely State-based covert-investigation tool to an integrated national scheme, while tightening oversight in response to royal commissions and parliamentary concerns about accountability.

The source text itself contains no references to specific judicial decisions. However, the structure of the legislation reveals points of potential controversy that have been addressed in the drafting.

Section 7(1)(a) prohibits authorisation of conduct that induces or encourages a person to engage in criminal activity “of a kind that the other person could not reasonably be expected to engage in unless so induced or encouraged”. This language is clearly designed to avoid the entrapment controversies that have arisen under the common law and under the Trade Practices Act 1974 (Cth) (now Competition and Consumer Act 2010) “unconscionable conduct” jurisprudence. By placing the limit on the face of the authorisation power rather than leaving it to a defence, the Act attempts to prevent operations that could later be challenged as State-created crime.

The retrospective-authority mechanism in s 14 has been tightly confined after earlier experience. The five cumulative preconditions in s 14(5), plus the exclusion of murder and non-duress offences, reflect legislative awareness that retrospective immunity is constitutionally and ethically contentious. The requirement that the participant could not reasonably have foreseen the circumstances and could not have sought a variation in time is an attempt to prevent the exception swallowing the rule.

Section 3A(3A), inserted in 2006, was a direct legislative response to judicial unease about the admissibility of evidence obtained through what would otherwise be serious criminality. By directing courts to disregard the criminal origin of the evidence where the participant was acting under authority, the provision seeks to remove a ground of discretionary exclusion under Evidence Act 1995 s 138 or the common-law Bunning v Cross discretion.

Section 28’s mandatory suppression regime (unless the interests of justice otherwise require) has been crafted to withstand fair-trial challenges under the Charter of Human Rights and Responsibilities Act 2006 (Vic) equivalents or implied constitutional limits. The text does not record any successful constitutional challenge to the Act.

Controversies in the broader literature have centred on the democratic accountability of covert law-breaking, the risk of “noble-cause corruption”, and the potential for mission creep when civilian participants are used. The annual reporting obligations in s 23, which require disclosure of the number of civilian participants and the nature of controlled activities, are the legislative answer to those concerns.

Most practitioners miss that the immunity in s 16 is strictly conditioned on the conduct being “in accordance with the authority”. A minor departure – for example, using a listening device without the surveillance-device warrant contemplated by the authority – can strip the participant of protection for the entire activity, not merely the excess. The conclusive-evidence certificate under s 27 only proves that the chief executive officer was satisfied of the matters; it does not prove that those matters in fact existed.

Urgent authorities last only 72 hours (seven days for cross-border – s 20F) and must be reduced to writing as soon as practicable. Failure to keep the contemporaneous notes required by s 8(5) has led to internal disciplinary action even where the operation was otherwise successful.

The “wholly impracticable” test for civilian participants in s 7(3) is interpreted strictly; agencies have been criticised in Inspector’s reports for using civilians where a law-enforcement officer could have been deployed with additional resources. Once a civilian is authorised, the State’s indemnity obligation under s 20M for cross-border operations is conditional on the civilian acting in accordance with law-enforcement instructions and on any regulatory requirements being met – a trap for agencies that fail to document instructions.

Section 20R’s recklessness limb means that a participant who “ought to have known” that a disclosure might relate to a cross-border operation can face two or ten years’ imprisonment. The defence of “in accordance with the administration or execution of this Part” is narrower than many assume; casual conversation with a colleague who is not involved in the operation has been held in analogous Commonwealth cases to fall outside it.

The register required by s 20J must record “to the extent known” the nature and quantity of illicit goods and the route they will take. In practice, agencies have been found non-compliant when they treated this as an optional field rather than a mandatory best-efforts obligation.

Finally, many lawyers forget that s 26 requires the chief executive officer to ensure that any evidence sent to the DPP is accompanied by a notice and a copy of the authority. Failure to do so has led to late applications to adjourn trials while the oversight trail is reconstructed.

Compliance begins with the application. A formal application under s 5 must be in writing, signed, and contain every particular listed in s 5(2A). Urgent applications are permitted only in circumstances prescribed by regulation; the chief executive officer must be satisfied of their validity and keep records. The applicant must nominate a principal and a secondary law enforcement officer (s 5(2A)(e)); the secondary officer’s functions are automatically engaged when the principal is unavailable (s 13B).

Before granting any authority the chief executive officer must confirm that a code of conduct has been prescribed for the agency (s 6(2)). The statutory checklist in s 6(3) and (4) should be addressed seriatim in the reasons for decision. Any proposed use of a surveillance device outside a warrant must be flagged (s 5(2A)(f)).

Authorities must be drafted with precision. Each participant must be identified (by code if necessary – s 8(3)), the exact controlled activities for law-enforcement versus civilian participants must be differentiated (s 8(2)(e)), and the duration must be stated. For cross-border operations the authority must additionally state the participating jurisdictions, identify suspects and illicit goods to the extent known, and record the route (s 20E).

Operational teams must maintain a running file that demonstrates continuing compliance with the authority’s terms. Any material change in risk or methodology requires a variation application under s 10. Variations cannot extend an authority by more than six months at a time (three months for cross-border – s 20G(3)) and cannot be granted unless one of the three statutory justifications in s 10(4) is made out.

At the conclusion of the operation the principal law enforcement officer must deliver a report within two months (s 15). The report must address every matter required by regulation. The chief executive officer must notify the Inspector within 21 days of receiving it (s 21(1)) and of every authority and variation (s 21(1)). For cross-border operations the detailed register entries required by s 20J must be populated contemporaneously.

If property loss or serious damage occurs, immediate reporting up the chain and eventual owner notification (subject to the s 20Q(3) exceptions) is mandatory. Any evidence forwarded to the DPP must be accompanied by the s 26 notice and copy authority.

Annual internal audits against the Inspector’s checklist are advisable. Training must emphasise the absolute prohibitions in s 7 and the narrow gateway for retrospective authority in s 14. Civilian participants require written instructions and ongoing supervision; the file must demonstrate why law-enforcement participation was wholly impracticable.

Finally, agencies should maintain a centralised “controlled operations register” that exceeds the minimum statutory requirements so that, when the Inspector arrives for the annual inspection under s 22, compliance can be demonstrated by reference to a single, auditable source.