What it does
The Law Enforcement (Controlled Operations) Act 1997 (NSW) establishes a comprehensive statutory regime under which law enforcement agencies may obtain prior (or, in limited cases, retrospective) authorisation to engage in conduct that would otherwise be unlawful. The core purpose, set out in the definition of “controlled operation” in s 3(1), is to obtain evidence of criminal activity or corrupt conduct, to arrest persons involved in such activity, to frustrate that activity, or to carry out steps reasonably necessary to achieve those ends. The operation must involve, or be likely to involve, a “controlled activity” – an act or omission that would be unlawful but for the immunity conferred by the Act.
Part 2 governs the authorisation process. A law enforcement officer applies to the chief executive officer of the relevant agency (s 5). Applications must contain a detailed plan, identification of the suspected criminal activity or corrupt conduct, the precise controlled activities sought, and nomination of principal and secondary law enforcement officers (s 5(2A)). The chief executive officer may grant an authority only if satisfied on several cumulative grounds in s 6(3): reasonable grounds to suspect criminal activity or corrupt conduct within the agency’s remit; that the suspected activity justifies a controlled operation; that the proposed controlled activities are proportionate; and that the operation can be fully accounted for so as to meet the Act’s reporting obligations. The chief executive officer must also have regard to the reliability of information, comparative likelihood of success against other methods, and the proposed duration (s 6(4)).
Section 7 imposes absolute prohibitions. An authority must not permit a participant to induce or encourage a person to commit an offence that person would not reasonably have been expected to commit, to engage in conduct likely to cause serious injury or death or serious property damage, or to commit a sexual offence. Civilian participants may be used only where it is wholly impracticable for a law enforcement officer to perform that role (s 7(3)).