Royal Commission (Police) Act 2002 (Western Australia)

The Royal Commission (Police) Act 2002 creates a statutory framework of powers and protections to assist a particular Royal Commission into whether, since 1 January 1985, there has been corrupt or criminal conduct by Western Australian police officers. Mechanically the Act does these principal things.

Confers compulsory information and document‑production powers on the Commissioner, including written notices requiring production of statements (s 5) and notices requiring attendance and production of documents or things (s 6). Non‑compliance is treated as contempt of the Commission (s 5(4), s 6(3)) with processes for the Supreme Court to adjudicate contempt (s 41).
Grants inspection powers over premises of public authorities and public officers, including taking copies, subject to limitations that the powers must be used only for investigating conduct that constitutes or may constitute corrupt or criminal conduct and subject to Parliamentary privilege (s 7).
Preserves legal professional privilege for persons but excludes the privilege of public authorities or public officers in that capacity (s 8).
Strengthens attendance and coercive powers: the Commissioner may issue arrest warrants for witnesses where attendance is likely not to be voluntary or the witness is likely to leave the State (s 9). Release can be conditional and breach of conditions is an offence (s 10). Review of detention or release conditions is available in the Supreme Court (s 11).
Imposes express secrecy and non‑publication directions given by the Commissioner with criminal penalties for contravention (s 12). It also allows express restrictions on disclosing the existence, nature or subject of notices or summonses (s 13).
Modifies the interaction with other investigative and procedural regimes: exempts the Commissioner and officers from certain ACC Act restrictions (s 14), permits disclosure and evidence from the Parliamentary Commissioner contrary to that Act (s 15), and makes modification to the Surveillance Devices Act 1998 and the Telecommunications (Interception) Western Australia Act 1996 so those surveillance regimes operate as if the Royal Commission were an Anti‑Corruption Commission (Part 8 and Part 9, s 36 and s 38). Those surveillance and interception adaptations expire when the Commission ends (s 3(3)).

CrestWestern Australia

Royal Commission (Police) Act 2002

Western Australia

Royal Commission (Police) Act 2002

Contents

Part 1 — Preliminary

Short title 2
Commencement 2
Interpretation 2
Relationship with Royal Commissions Act 1968 4

Part 2 — Obtaining information, documents and other things

Power to obtain information 5
Power to obtain documents etc. 6
Power to enter public premises 6
Legal professional privilege 7

Part 3 — Attendance before the Commission

Arrest of witness 8
Conditional release of a witness 9
Review by Supreme Court 10

Part 4 — Secrecy, disclosure and admissibility

Restriction on publication of evidence 11
Restriction on disclosure 11
Application of ACC Act 12
Disclosure of information and giving of evidence by Parliamentary Commissioner 13
Application of Telecommunications (Interception) Western Australia Act 1996 13

Part 5 — Investigation of police complaints by Commission

Interpretation 14
Termination of police investigation 14
Termination of Parliamentary Commissioner investigation 15
This Part does not require information to be disclosed by Commission 16

Part 6 — Assumed identities

Interpretation 17
Approval for assumed identity 17
What an approval authorises 18
Duties of agencies and organisations 18
Identity of certain officers not to be disclosed in legal proceedings 19
Protection from liability 20
Report to Attorney General 21

Part 7 — Controlled operations and integrity testing programmes

Interpretation 22
Authorisation of controlled operation 22
Commissioner may authorise integrity testing programmes 23
Effect of authorisation 25
Protection from liability 25
Evidence 26
Report to Attorney General 26

Part 8 — Surveillance Devices Act 1998 amended

The Act amended 27
Section 4B inserted 27

4B. Application of Act to Royal Commission into the Police 27

Part 9 — Telecommunications (Interception) Western Australia Act 1996 amended

The Act amended 30
Section 3A inserted 30

3A. Application of Act to Royal Commission into the Police 30

Part 10 — Prisons Act 1981 amended

The Act amended 32
Section 22 amended 32

Part 11 — Miscellaneous

Contempt 33
Victimisation 34
Secrecy 35
Delegation 36
Protection from liability 37
Matter exempt from access 37
Powers do not extend beyond end of Commission 37
Regulations 38

Notes

Compilation table 39

Defined terms

Western Australia

Royal Commission (Police) Act 2002

An Act to —

• confer additional powers on the Royal Commission appointed by a commission dated 12 December 2001 and published in the Gazette of 28 December 2001;

• assist the conduct of that Royal Commission;

• amend the Surveillance Devices Act 1998 and the Telecommunications (Interception) Western Australia Act 1996 for the purposes of the Royal Commission; and

• amend the Prisons Act 1981,

and for related purposes.

Part 1 — Preliminary

1. Short title

This Act may be cited as the Royal Commission (Police) Act 2002.

2. Commencement

This Act comes into operation on the day on which it receives the Royal Assent.

3. Interpretation

(1) In this Act unless the contrary intention appears —

ACC Act means the Anti‑Corruption Commission Act 1988;

Commission means —

(a) the Royal Commission constituted by the person appointed by the commission dated 12 December 2001 and published in the Gazette of 28 December 2001 to inquire into and report on whether since 1 January 1985 there has been corrupt conduct or criminal conduct by any Western Australian police officer; and

(b) any Royal Commission with the same or similar terms of reference as the Royal Commission referred to in paragraph (a) and which replaces that Royal Commission,

and includes the person appointed to be the Commission acting in the exercise of his duty as a Commissioner;

Commissioner means the person appointed to be the Commission;

corrupt conduct and criminal conduct include, but are not limited to, the meanings given to those phrases by section 3 of the ACC Act;

Deputy Parliamentary Commissioner means a person for the time being holding the office of Deputy Parliamentary Commissioner for Administrative Investigations under the Parliamentary Commissioner Act 1971;

disciplinary measures means measures under section 8 or 23 of the Police Act 1892 and any related proceedings, hearing or inquiry;

legal practitioner means an Australian legal practitioner within the meaning of that term in the Legal Profession Act 2008 section 3;

1968 Act means the Royal Commissions Act 1968;

officer of the Commission means —

(a) a legal practitioner appointed to assist the Commission; and

(b) any other person appointed, employed, seconded or engaged to assist the Commission;

officer of the Parliamentary Commissioner has the meaning given to “officer of the Commissioner” by the Parliamentary Commissioner Act 1971;

Parliamentary Commissioner means a person for the time being holding or acting in the office of the Parliamentary Commissioner for Administrative Investigations under the Parliamentary Commissioner Act 1971;

premises includes any structure, building, aircraft, vehicle, vessel and place (whether built or not), and any part of it;

public authority has the same meaning as in the ACC Act;

public officer has the same meaning as in The Criminal Code and includes a former public officer.

(2) For the purposes of this Act the Commission is taken to have ended on a day fixed by order of the Governor published in the Gazette.

(3) At the time the Commission ends under subsection (2), section 4B of the Surveillance Devices Act 1998, as inserted by section 36, and section 3A of the Telecommunications (Interception) Western Australia Act 1996, as inserted by section 38, shall each expire.

[Section 3 amended: No. 65 of 2003 s. 63; No. 78 of 2003 s. 71; No. 21 of 2008 s. 700.]

4. Relationship with Royal Commissions Act 1968

(1) For the purposes of the operation of the Commission, this Act is to be read as if it formed part of the 1968 Act.

(2) The provisions of this Act are in addition to, and not in derogation of, any provisions of the 1968 Act, except as specifically provided by this Act.

(3) Nothing in the 1968 Act operates to constrain or restrict the exercise of a function conferred or imposed by or under this Act.

Part 2 — Obtaining information, documents and other things

5. Power to obtain information

(1) For the purposes of the Commission’s inquiry, the Commissioner may, by written notice served on a public authority or public officer, require the authority or officer to produce a statement of information.

(2) A notice under this section must —

(a) specify or describe the information concerned;

(b) fix a time and date by which the statement of information must be produced; and

(3) The notice —

(a) may provide that the requirement may be satisfied by some other person acting on behalf of the public authority or public officer; and

(b) may specify the person or class of persons who may so act.

(4) Subject to section 41, a person who —

(a) fails to comply with a notice served on the person under this section; or

(b) in purported compliance with a notice served on the person or some other person under this section, furnishes information knowing it to be false or misleading in a material particular,

is guilty of a contempt of the Commission.

(5) A statement of information produced by a person in compliance with a notice served under this section is not admissible in evidence against that person in any civil or criminal proceedings except —

(a) contempt proceedings;

(b) proceedings for an offence against this Act or the 1968 Act; or

6. Power to obtain documents etc.

(1) For the purposes of the Commission’s inquiry, the Commissioner may, by written notice served on a person, require the person —

(a) to attend, at a time and place specified in the notice, before the Commission or an officer of the Commission as specified in the notice; and

(b) to produce at that time and place to the person so specified a document or other thing specified in the notice.

(2) The notice —

(a) may provide that the requirement may be satisfied by some other person acting on behalf of the person on whom it was imposed; and

(b) may specify the person or class of person who may so act.

(3) Subject to section 41, a person who fails to comply with a notice served on the person under this section is guilty of a contempt of the Commission.

7. Power to enter public premises

(1) For the purposes of the Commission’s inquiry, the Commissioner or an officer of the Commission authorised in writing by the Commissioner may, at any time —

(a) enter and inspect any premises occupied or used by a public authority or public officer in that capacity;

(b) inspect any document or other thing in or on the premises; and

(2) The powers conferred by this section must not be exercised other than for the purpose of investigating any conduct of a person that constitutes or involves or may constitute or involve corrupt conduct or criminal conduct.

(3) A public authority or public officer must make available to the Commissioner or authorised officer such facilities as are necessary to enable the powers conferred by subsection (1) to be exercised.

(4) Subject to subsection (5), the powers conferred by this section may be exercised despite —

(a) any rule of law which, in proceedings in a court, might justify an objection to an inspection of the premises or to the production of a document or other thing on grounds of public interest;

(b) any privilege of a public authority or public officer in that capacity which the authority or official could have claimed in a court of law; or

(5) Nothing in this section affects the operation of the Parliamentary Privileges Act 1891.

8. Legal professional privilege

(1) Subject to subsection (2), nothing in this Act prevents a person who is required under section 5, 6 or 7 to produce a statement of information, document or other thing or make facilities available from claiming legal professional privilege as a reason for not complying with that requirement.

(2) Subsection (1) does not apply to any privilege of a public authority or public officer in that capacity.

Part 3 — Attendance before the Commission

9. Arrest of witness

(1) If a person served with a summons under section 9 of the 1968 Act fails to attend as required by the summons and section 10 of that Act, the Commissioner may, on proof by statutory declaration of the service of the summons, issue a warrant for the apprehension of that person.

(2) The Commissioner may issue a warrant for the apprehension of a person whose evidence is desired and is necessary and relevant to the Commission’s inquiry if the Commissioner is satisfied by evidence on oath or affirmation that it is probable that the person —

(a) will not attend before the Commission to give evidence without being compelled to do so; or

(b) is about to or is making preparation to leave the State and the person’s evidence will not be obtained by the Commission if the person departs.

(3) The powers conferred by subsection (2) must not be exercised unless the Commissioner is satisfied that the evidence of the person concerned is required for the purpose of investigating any conduct of a person that constitutes or involves or may constitute or involve corrupt conduct or criminal conduct.

(4) A warrant may be issued under subsection (2) without or before the issue of a summons to the person whose evidence is desired.

(5) A warrant may be issued under subsection (2) after the issue of a summons to the person whose evidence is desired, even though the time specified in the summons for the person to attend has not yet passed.

(6) A warrant under this section authorises the apprehension of the person and his or her being promptly brought before the Commission and detained in custody for that purpose until released by order of the Commissioner.

(7) A warrant issued under this section may be executed by a member of the Police Force, or by any person to whom it is addressed, and the person executing it may use such force as is reasonably necessary for the purpose of entering any premises for the purpose of executing it.

(8) The apprehension of a witness under this section does not prevent the witness from being dealt with for contempt under section 41 for non‑compliance with the summons.

(9) This section operates in place of section 16 of the 1968 Act.

10. Conditional release of a witness

(1) The release of a witness by order of the Commission under section 9(6) may be made subject to one or more of the following conditions —

(a) that the witness appear and report before the Commission in accordance with the terms of the order unless excused from attendance or until released from further attendance by the Commissioner or an officer of the Commission;

(b) conditions for the purpose of ensuring the further attendance of the witness before the Commission (for example, the provision of sureties by the witness, the surrender of any passport held by the witness, a requirement as to where the witness is to live and regular reporting by the witness to the Commission);

(2) The Commissioner may by order amend, revoke or add to those conditions.

(3) A witness who without reasonable excuse fails to comply with a condition to which the release of the witness under section 9(6) is subject is guilty of an offence.

Penalty: Imprisonment for 2 years and a fine of $8 000.

11. Review by Supreme Court

(1) A witness who has not been released by the Commissioner under section 9(6) or whose release under that provision is subject to one or more conditions may apply to the Supreme Court for a review of the decision not to release the witness or of the terms of one or more of those conditions.

(2) The Supreme Court may do either or both of the following —

(a) affirm or set aside a decision by the Commissioner not to release the witness or any condition imposed by the Commissioner on the release of the witness;

(b) make any order that the Commissioner may make in relation to the detention or release of the witness.

(3) The Supreme Court may also exercise its powers under subsection (2) where the Commissioner has not made a decision within a reasonable time on the release of a witness.

(4) An order under subsection (2) is taken to be an order of the Commissioner.

Part 4 — Secrecy, disclosure and admissibility

12. Restriction on publication of evidence

(1) The Commissioner may direct that —

(a) any evidence given before the Commission;

(b) the contents of any statement of information, document, or a description of any thing, produced to the Commission;

(c) the contents of any document, or a description of any thing, seized under a search warrant issued under the 1968 Act;

(d) any information that might enable a person who has given or may be about to give evidence before the Commission to be identified or located;

(e) the fact that any person has given or may be about to give evidence before the Commission,

must not be published or must not be published except in such manner, and to such persons, as the Commissioner specifies.

(2) A person must not make a publication in contravention of a direction given under this section.

Penalty: Imprisonment for 12 months and a fine of $4 000.

(3) This section operates in place of section 19B of the 1968 Act.

13. Restriction on disclosure

(1) The Commissioner may include a restriction on disclosure in —

(a) a notice under section 5(1) or 6(1) to produce a statement of information or to attend and produce a document or other thing; or

(b) a summons to attend the Commission to give evidence or produce a document or other thing.

(2) A restriction on disclosure is a direction that the person required to comply with the notice or summons must not disclose to any person except a person specified in the notice or summons or a person to whom the information may be disclosed under subsection (4) —

(a) the existence or nature of the notice or summons;

(b) the part or aspect of the Commission’s inquiry to which the notice or summons relates; or

(c) any information from which a person could reasonably be expected to infer the existence or nature of the notice or summons or of the part or aspect of the Commission’s inquiry to which it relates.

(3) A person served with a notice under section 5(1) or 6(1), or a summons to attend the Commission, that includes a restriction on disclosure must comply with the restriction on disclosure.

Penalty: Imprisonment for 12 months and a fine of $4 000.

(4) A person does not contravene subsection (3) if —

(a) the disclosure is made to an employee, agent or other person in order to obtain information to comply with the notice or summons and the employee, agent or other person is directed not to inform the person to whom the information relates about the matter;

(b) the disclosure is made to obtain legal advice or representation in relation to the notice or summons; or

14. Application of ACC Act

(1) Section 14 of the ACC Act does not apply to the Commissioner or to any officer of the Commission.

(2) The ACC Act does not apply to prevent the Commissioner or an officer of the Commission authorised for the purposes of this section by the Commissioner from furnishing, divulging or communicating evidence or information, or producing a document, for the purposes of a function of the Commission.

15. Disclosure of information and giving of evidence by Parliamentary Commissioner

(1) The Parliamentary Commissioner, the Deputy Parliamentary Commissioner or an officer of the Parliamentary Commissioner authorised for the purposes of this section by the Parliamentary Commissioner or Deputy Parliamentary Commissioner, may —

(a) disclose to the Commission information obtained in the course of, or for the purposes of, the Parliamentary Commissioner Act 1971 or any other Act to the Commission; and

(b) give evidence before the Commission and produce any document to the Commission, in respect of that information.

(2) This section applies despite section 23 of the Parliamentary Commissioner Act 1971 and any other law.

16. Application of Telecommunications (Interception) Western Australia Act 1996

Section 22 of the Telecommunications (Interception) Western Australia Act 1996 does not apply to prevent the disclosure of any information or record for the purposes of any proceedings for an offence under this Act.

Part 5 — Investigation of police complaints by Commission

17. Interpretation

In this Part —

police complaint means an allegation or complaint which concerns or may concern corrupt conduct or criminal conduct by a person who is or has been a member of the Police Force of the State.

18. Termination of police investigation

(1) If the Commissioner gives to the Commissioner of Police notification that the Commissioner is investigating a police complaint or part of a police complaint (the matter) —

(a) the Commissioner of Police must not commence any investigation of the matter or, if an investigation of the matter has already commenced, must discontinue the investigation;

(b) the Commissioner of Police must take all reasonable steps to ensure that an investigation of the matter is not conducted by a police officer; and

(c) the notification absolves the Commissioner of Police and other police officers from any duty with respect to crime and the preservation of the peace so far as it relates to investigation of the matter or to the bringing of an offender concerned before the courts to be dealt with according to law.

(2) Subsection (1)(b) does not apply to a special constable who is an officer of the Commission.

(3) Subsection (1) does not prevent an investigation of the matter that is conducted in accordance with arrangements made between the Commission and the Commissioner of Police.

(4) Despite subsection (1), an investigation of the matter by the Commissioner of Police may be commenced or resumed —

(a) if the Commissioner notifies the Commissioner of Police that the Commissioner has completed or discontinued investigation of the matter; or

(b) after the end of the Commission.

19. Termination of Parliamentary Commissioner investigation

(1) If the Commissioner gives to the Parliamentary Commissioner notification that the Commissioner is investigating a police complaint or part of a police complaint (the matter) —

(a) the Parliamentary Commissioner must not commence any investigation of the matter or, if an investigation of the matter has already commenced, must discontinue the investigation;

(b) the Parliamentary Commissioner must take all reasonable steps to ensure that an investigation of the matter is not conducted by the Deputy Parliamentary Commissioner or an officer of the Parliamentary Commissioner; and

(c) the notification absolves the Parliamentary Commissioner from any duty under the Parliamentary Commissioner Act 1971 so far as it relates to investigation of the matter.

(2) Subsection (1) does not prevent an investigation of the matter that is conducted in accordance with arrangements made between the Commission and the Parliamentary Commissioner.

(3) Despite subsection (1), an investigation of the matter by the Parliamentary Commissioner may be commenced or resumed —

(a) if the Commissioner notifies the Parliamentary Commissioner that the Commissioner has completed or discontinued investigation of the matter; or

(b) after the end of the Commission.

20. This Part does not require information to be disclosed by Commission

Nothing in this Part is to be construed as requiring the Commission to disclose any information to the Commissioner of Police or the Parliamentary Commissioner.

Part 6 — Assumed identities

21. Interpretation

In this Part —

agency, chief employee, chief executive officer and organisation have the same meanings as in the Public Sector Management Act 1994.

22. Approval for assumed identity

(1) The Commissioner may grant an approval (an assumed identity approval) for the acquisition and use of an assumed identity by an officer of the Commission.

(2) The approval —

(a) must be in writing;

(b) may specify documents that may be acquired for use as evidence of the assumed identity;

(d) must be signed by the Commissioner.

(3) The approval may be granted subject to conditions specified in the approval.

(4) The Commissioner may, in writing, vary or cancel the approval.

(5) Unless it is sooner cancelled, the approval remains in force until the Commission ends.

(6) If an approval ceases to be in force the Commissioner must notify each chief executive officer and chief employee who issued a document under section 24 in accordance with the approval.

23. What an approval authorises

(1) An assumed identity approval authorises the officer to whom it applies to acquire and use an assumed identity specified in the approval if the acquisition or use —

(a) is in the course of duty; and

(b) is in accordance with the assumed identity approval.

(2) The officer can use an assumed identity under the authority of an assumed identity approval without having actually acquired the identity.

(3) An assumed identity approval also authorises —

(a) the making (by the officer to whom the approval applies or by the Commissioner) of any false or misleading representation about the officer, for the purposes of or in connection with the acquisition or use of the assumed identity by the officer; and

(b) the use by the officer of the assumed identity to obtain evidence of the identity.

24. Duties of agencies and organisations

(1) The chief executive officer or chief employee of an agency or organisation to whom an assumed identity approval is presented is authorised and required —

(a) to prepare and provide to the Commissioner or an officer of the Commission the documents specified in the approval; and

(b) to make an appropriate entry in respect of the assumed identity in each register or record, relevant to those documents, kept by the agency or organisation.

(2) On being directed by the Commissioner to cancel an assumed identity, a chief executive officer or chief employee, is authorised and required to cancel any evidence of identity or entry in a register or record provided or made in respect of the assumed identity.

(3) In subsection (1) —

appropriate entry, in respect of an assumed identity, means a written or electronic entry that, either alone or with other entries, is not inconsistent with the assumed identity being a real identity.

25. Identity of certain officers not to be disclosed in legal proceedings

(1) If, in proceedings before a court, the identity of an officer in respect of whom an assumed identity approval is or was in force may be disclosed, the court must, unless it considers that the interests of justice otherwise require —

(a) ensure that such parts of the proceedings as relate to the real identity of the officer are held in private; and

(b) make such orders as to the suppression of evidence given before it as, in its opinion, will ensure that the identity of the officer is not disclosed.

(2) In particular, the court —

(a) may allow an officer in respect of whom an assumed identity approval was or is in force to appear before it under the assumed identity or under a code name or code number; and

(b) may make orders prohibiting the publication of any information (including information derived from evidence before it) that identifies, or might facilitate the identification of, any person who has been or is proposed to be called to give evidence.

(3) A person who discloses information in contravention of an order in force under this section is guilty of a crime.

Penalty: Imprisonment for 5 years and a fine of $100 000.

(4) In this section —

court includes any tribunal, authority or person having power to require the production of documents or the answering of questions.

26. Protection from liability

(1) Despite any other law —

(a) an officer of the Commission who acquires and uses an assumed identity under this Part is not criminally liable for any act the officer does in good faith in accordance with the assumed identity approval; and

(b) a chief executive officer or chief employee who engages in conduct that, apart from this section, would constitute an offence against a law of the State is not criminally liable for the offence if the chief executive officer or chief employee engages in the conduct in response to an assumed identity approval.

(2) Conduct of —

(a) the Commissioner;

(b) a chief executive officer or chief employee; or

does not, if the conduct was in good faith and for the purpose of executing this Part, subject the Commissioner, chief executive officer, chief employee or officer of the Commission to any action, claim, liability or demand.

(3) A certificate signed by the Commissioner stating that —

(a) a chief executive officer or chief employee is authorised by section 23 to prepare and provide a specified document or make a specified entry; or

(b) on a specified date, or during a specified period, a specified officer of the Commissioner was authorised to acquire and use a specified assumed identity in accordance with specified conditions,

is admissible in any legal proceedings and is conclusive evidence of the matters specified in the certificate.

27. Report to Attorney General

(1) The Commission may furnish to the Attorney General a report containing information relating to —

(a) assumed identity approvals issued under this Part; and

(b) such other matters relating to the approvals as the Commission considers appropriate.

(2) The Attorney General is to cause a report furnished by the Commission under subsection (1) to be laid before each House of Parliament as soon as practicable.

Part 7 — Controlled operations and integrity testing programmes

28. Interpretation

In this Part —

controlled activity means an activity that, but for section 32, would be unlawful;

controlled operation means an operation —

(a) in which one or more officers of the Commission participate for the purpose of obtaining or facilitating the obtaining of evidence of corrupt conduct or criminal conduct by a police officer; and

(b) which involves or may involve a controlled activity.

29. Authorisation of controlled operation

(1) The Commissioner may authorise a controlled operation.

(2) The authorisation must —

(a) be in writing;

(b) specify the officer of the Commission responsible for the operation;

(d) identify the controlled operation;

(e) specify the nature of the particular controlled activities in which officers of the Commission are authorised to engage;

(f) specify a period, not exceeding 6 months, for which the authorisation is given;

(g) specify a date and time, being not earlier than its signing, when the authorisation comes into force; and

(h) be signed by the Commissioner.

(3) For the purposes of subsection (2)(d) a controlled operation may be identified by reference to a plan of the controlled operation held by the Commissioner.

(4) A person is sufficiently identified for the purposes of subsection (2)(b) or (c) if the person is identified —

(a) by an assumed identity under which the person is operating; or

(b) by a code name or number,

so long as the assumed identity, code name or code number can be matched to the person’s identity by reference to documentation kept by the Commissioner.

(5) The authorisation may be granted subject to conditions specified in the authorisation.

(6) The Commissioner may, in writing, vary or cancel the authorisation.

(7) Unless it is sooner cancelled, an authorisation remains in force for the period specified in the authority.

30. Commissioner may authorise integrity testing programmes

(1) The Commissioner may authorise an officer of the Commission or another person to conduct a programme (an integrity testing programme) to test the integrity of any particular police officer or class of police officers.

(2) An integrity testing programme may involve an act or omission (by a person who is participating in the programme) that offers a police officer whose integrity is being tested the opportunity to engage in behaviour, whether lawful or unlawful, in contravention of the principles of integrity required of a police officer.

(3) The authorisation must —

(a) be in writing;

(b) specify the officer of the Commission responsible for the programme;

(d) identify the integrity testing programme;

(e) specify the nature of the particular activities in which the persons specified in the authorisation are authorised to engage;

(f) specify a period, not exceeding 6 months, for which the authorisation is given;

(g) specify a date and time, being not earlier than its signing, when the authorisation comes into force; and

(h) be signed by the Commissioner.

(4) For the purposes of subsection (3)(d) an integrity testing programme may be identified by reference to a plan of the programme held by the Commissioner.

(5) A person is sufficiently identified for the purposes of subsection (3)(b) or (c) if the person is identified —

(a) by an assumed identity under which the person is operating; or

(b) by a code name or number,

so long as the assumed identity, code name or code number can be matched to the person’s identity by reference to documentation kept by the Commissioner.

(6) The authorisation may be granted subject to conditions specified in the authorisation.

(7) The Commissioner may, in writing, vary or cancel the authorisation.

(8) Unless it is sooner cancelled, an authorisation remains in force for the period specified in the authority.

31. Effect of authorisation

(1) While it is in force, an authorisation for a controlled operation or integrity testing programme authorises each person authorised to participate in the operation or programme to engage in the activities identified in the authorisation.

(2) In any criminal proceedings, no evidence is to be excluded and no proceedings are to be stayed only by reason of the fact that a person who participated in an authorised controlled operation or authorised integrity testing programme was not authorised to participate in the operation.

32. Protection from liability

(1) Despite any other law —

(a) a person who is authorised to participate in an authorised controlled operation or authorised integrity testing programme is not criminally liable for any act the person does, in good faith and in accordance with the terms of the authorisation, in the course of the operation or programme; and

(b) an activity engaged in by a person who is authorised to participate in an authorised controlled operation or authorised integrity testing programme in the course of or for the purpose of the operation or programme does not constitute corrupt conduct or criminal conduct if the activity is engaged in in good faith and in accordance with the terms of the authorisation.

(2) Conduct of —

(a) the Commissioner; or

(b) a participant in an authorised controlled operation or authorised integrity testing programme,

does not, if the conduct was in good faith and for the purpose of executing this Part, subject the Commissioner or participant to any action, claim, liability or demand.

33. Evidence

A certificate signed by the Commissioner stating that, on a specified date or during a specified period, a specified person was authorised under this Part to participate in a controlled operation or integrity testing programme involving a specified act or omission is admissible in any legal proceedings and is conclusive evidence of the matters specified in the certificate.

34. Report to Attorney General

(1) The Commission may furnish to the Attorney General a report containing information relating to —

(a) authorisations issued under this Part; and

(b) such other matters relating to authorised controlled operations and integrity testing as the Commission considers appropriate.

(2) The Attorney General is to cause a report furnished by the Commission under subsection (1) to be laid before each House of Parliament as soon as practicable.

Part 8 — Surveillance Devices Act 1998 amended

35. The Act amended

The amendments in this Part are to the Surveillance Devices Act 1998*.

36. Section 4B inserted

After section 4A the following section is inserted in Part 1 —

“

4B. Application of Act to Royal Commission into the Police

(1) In this section —

corrupt conduct has the same meaning as in the Royal Commission (Police) Act 2002;

Royal Commission has the same meaning as “Commission” in the Royal Commission (Police) Act 2002.

(2) This Act operates as if —

(a) a reference in this Act to the Anti‑Corruption Commission, other than in a provision listed in the Table to this subsection, included a reference to the Royal Commission;

(b) a reference in this Act to an Anti‑Corruption Commission officer, other than in the definitions in section 3(1) of “Anti‑Corruption Commission Officer” and “authorised person”, included a reference to an officer of the Commission within the meaning of the Royal Commission (Police) Act 2002; and

(c) a reference in this Act to an authorised person included, in the case of the Royal Commission, a reference to a person authorised by the Royal Commission.

Table

s. 3(1) “Anti‑Corruption Commission”	s. 43(2)
s. 3(1) “authorised person”	s. 43(4)
s. 9(2)(a)(iii)	s. 44(1)(f)
s. 15(3)(b)

(3) This Act operates as if, for the purposes of the Royal Commission, in the provisions listed in the Table to this subsection —

(a) a reference to a suspected criminal offence included a reference to suspected corrupt conduct;

(b) a reference to an offence included a reference to an act of corrupt conduct; and

Table

s. 5(3)(b)	s. 13(8)(a)
s. 6(3)(b)(ii)	s.17(1)(a) and (b)
s. 13(1)(a) and (b)

(4) Section 9(2)(a) operates as if it included the following subparagraph —

“

(iiia) to the Royal Commission or to any person or persons authorised for the purpose by the Royal Commission;

”.

(5) Section 15(3) operates as if it included the following paragraph —

“

(ba) in the case of an application by an officer of the Royal Commission, is required to attach an authorisation of the Royal Commission or a person delegated by the Royal Commission for the action proposed;

”.

(6) The Royal Commission may furnish to the Attorney General a report containing information relating to —

(a) applications for warrants and extensions of warrants, including the number of such applications and the orders made in respect of such applications;

(b) applications for emergency authorisations, including the number of such applications and the authorisations issued in respect of such applications; and

(c) such other matters relating to the use of surveillance devices and the administration of this Act as the Commission considers appropriate.

(7) The Attorney General shall cause a report furnished by the Royal Commission under subsection (6) to be laid before each House of Parliament as soon as practicable.

(8) Section 44(1) operates as if the reference in paragraph (f) to the chairman of the Anti‑Corruption Commission included a reference to the Royal Commission.

”.

Part 9 — Telecommunications (Interception) Western Australia Act 1996 amended

37. The Act amended

The amendments in this Part are to the Telecommunications (Interception) Western Australia Act 1996.

38. Section 3A inserted

After section 3 the following section is inserted in Part 1 —

“

3A. Application of Act to Royal Commission into the Police

This Act operates as if in section 3(1) —

(a) the following definition were included —

“

Royal Commission has the same meaning as “Commission” in the Royal Commission (Police) Act 2002;

”;

(b) the definition of “agency” included the following paragraph —

“ (bb) the Royal Commission; ”;

“

(aa) in relation to the Royal Commission, the person appointed to be the Royal Commission;

”;

(d) instead of the definition of “eligible authority” the following definition were included —

“

eligible authority means the Anti‑Corruption Commission, the Royal Commission or the Police Force;

”;

(e) the definition of “officer” included the following paragraph —

“

(aa) in relation to the Royal Commission, an officer of the Commission within the meaning of the Royal Commission (Police) Act 2002;

”;

and

(f) the definition of “responsible Minister” included the following paragraph —

“

(aa) in relation to the Royal Commission, the Attorney General;

”.

Part 10 — Prisons Act 1981 amended

39. The Act amended

The amendments in this Part are to the Prisons Act 1981.

40. Section 22 amended

Section 22 is amended as follows:

(a) by inserting before “Where” the subsection designation “(1)”;

(b) by deleting “, inquest or Royal Commission” and inserting instead —

“ or inquest ”;

“

(2) Where the presence of a prisoner is required for the purposes of a Royal Commission, a Commissioner appointed to be the Commission or to be a member of the Commission, or the superintendent of the prison in which the prisoner is confined, may, by order in writing, direct that the prisoner be brought up for those purposes to the place named in the order.

”.

Part 11 — Miscellaneous

41. Contempt

(1) Where a contempt of the Commission is alleged to have taken place, the Commissioner may present to the Supreme Court a certificate setting out the details of the act or omission that the Commissioner considers constitutes the alleged contempt.

(2) A certificate presented under subsection (1) is prima facie evidence of the matters certified within it.

(3) Where a certificate is presented under subsection (1), the Supreme Court has jurisdiction as if the contempt were a contempt of that Court.

(4) If, in relation to the Commission, there is any failure, refusal or contravention referred to in section 13(1), 14(1) or 18(10) of the 1968 Act, it may be dealt with under this section as a contempt of the Commission, and any defence that would have been available in proceedings under those sections in respect of the failure, refusal or contravention is available under this section.

(5) A person is not liable to be punished for contempt under this section in respect of failure to comply with a notice served under section 5 or 6 of this Act if —

(a) the person establishes that there was a reasonable excuse for the act or omission concerned; or

(b) in the case of a failure without reasonable excuse to produce any document or other thing under section 6, the person proves that the document or other thing was not relevant to the inquiry.

(6) Except as otherwise provided in this Act, a person required to comply with a notice served under section 5 or 6 has the same protection, and is subject to the same liabilities in any civil or criminal proceedings, as a witness in any case tried in the Supreme Court.

(7) In this section —

reasonable excuse means an excuse that would excuse a similar failure by a witness, or a person summoned as a witness, before the Supreme Court except that it does not include as an excuse for failing to comply with a notice that —

(a) the production of the statement of information, document or other thing as required in the notice or summons might incriminate or tend to incriminate the person or render the person liable to a penalty; or

(b) the production of the document or other thing would be in breach of an obligation of the person not to disclose information, or not to disclose the existence or contents of a document, whether the obligation arose under an enactment or otherwise.

42. Victimisation

(1) A person who —

(a) prejudices, or threatens to prejudice, the safety or career of another person;

(b) intimidates or harasses, or threatens to intimidate or harass another person; or

because that other person —

(d) has assisted, is assisting or will or may in the future assist the Commission in the performance of its functions; or

(e) has furnished, is furnishing or will or may in the future furnish information to the Commission,

is guilty of a crime.

Penalty: Imprisonment for 5 years and a fine of $100 000.

(2) This section operates in place of sections 29 and 30 of the 1968 Act.

43. Secrecy

(1) An officer of the Commission must not, directly or indirectly —

(a) make a record of any information; or

(b) divulge or communicate any information,

being information acquired by the person by reason of, or in the course of, the exercise of the person’s functions as an officer of the Commission.

Penalty: Imprisonment for 2 years and a fine of $8 000.

(2) The Commissioner or an officer of the Commission cannot be required —

(a) to produce in any court any document or other thing that has come into the person’s possession, custody or control by reason of, or in the course of, the exercise of the person’s functions as Commissioner or an officer of the Commission; or

(b) to divulge or communicate to any court any matter or thing that has come to the person’s notice in the exercise of the person’s functions as Commissioner or an officer of the Commission,

except for the purposes of —

(d) disciplinary measures.

(3) Subsection (1) does not prevent the recording, divulging or communicating of information or the production of a document —

(a) for the purposes of the Commission’s inquiry and report or otherwise for the purposes of and in accordance with this Act or the 1968 Act;

(b) for the purposes of a prosecution or disciplinary measures;

(d) in accordance with a direction of the Commissioner, if the Commissioner certifies that it is necessary to do so in the public interest; or

(e) to any prescribed authority or person.

(4) An authority or person to whom information is divulged or communicated or a document is given under subsection (3), and any person or employee under the control of that authority or person, is subject to the same rights, privileges, obligations and liabilities under subsections (1) and (2) in respect of that information as if he or she were a person to whom this section applies and had acquired the information in the exercise of the person’s functions as Commissioner or an officer of the Commission.

(5) In this section —

court includes any tribunal, authority or person having power to require the production of documents or the answering of questions;

produce includes permit access to.

44. Delegation

(1) The Commissioner may delegate any of the Commission’s functions under —

(a) section 5, 6 or 7 of this Act; or

(b) section 9 or 10 of the 1968 Act,

to the person appointed as Senior Counsel Assisting the Commission.

(2) The person to whom a function is delegated under subsection (1) may only perform that function during the illness of the Commissioner or the absence of the Commissioner from Perth or the State.

45. Protection from liability

(1) A matter or thing done by the Commission, the Commissioner or any person acting under the direction of the Commission or Commissioner which was done in good faith for the purposes of the Commission’s inquiry or report or for the purpose of executing this or any other Act does not subject the Commissioner or the person so acting personally to any action, liability, claim or demand.

(2) No criminal or civil liability attaches to any person for compliance or purported compliance in good faith with any requirement made under this Act.

(3) In particular, if a person gives any statement of information or produces any document or other thing under section 5 or 6, no civil liability attaches to the person for doing so, whether that liability would arise under a contract or otherwise.

(4) Any protection or immunity afforded by the 1968 Act and any protection existing apart from that Act and this section apply to any matter or thing done by the Commission, the Commissioner or any person acting under the direction of the Commission or Commissioner as if the matter or thing were done under that Act.

46. Matter exempt from access

Without limiting Schedule 1 clause 5(1) of the Freedom of Information Act 1992, matter created or maintained for the purposes of Part 6 or 7 is exempt matter for the purposes of that Act.

47. Powers do not extend beyond end of Commission

The powers conferred by sections 5, 6, 7, 9, 12, 18, 19, 22, 29 and 30 cannot be exercised after the end of the Commission.

48. Regulations

The Governor may make regulations prescribing all matters that are required or permitted by this Act, or are necessary or convenient for giving effect to the purposes of this Act and in particular for the further implementation of Parts 6 and 7.

Notes

1 This is a compilation of the Royal Commission (Police) Act 2002 and includes the amendments made by the other written laws referred to in the following table.

Compilation table

Short title	Number and year	Assent	Commencement
Royal Commission (Police) Act 2002	10 of 2002	28 Jun 2002	28 Jun 2002 (see s. 2)
Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 s. 63	65 of 2003	4 Dec 2003	1 Jan 2004 (see s. 2 and Gazette 30 Dec 2003 p. 5722)
Corruption and Crime Commission Amendment and Repeal Act 2003 s. 71 2	78 of 2003	22 Dec 2003	1 Jan 2004 (see s. 2 and Gazette 30 Dec 2003 p. 5723)
Legal Profession Act 2008 s. 700	21 of 2008	27 May 2008	1 Mar 2009 (see s. 2(b) and Gazette 27 Feb 2009 p. 511)

1a On the date as at which this compilation was prepared, provisions referred to in the following table had not come into operation and were therefore not included in this compilation. For the text of the provisions see the endnotes referred to in the table.

2 The Corruption and Crime Commission Amendment and Repeal Act 2003 Pt. 3 Div. 4 reads as follows:

“

Division 4 — Royal Commission (Police) Act 2002

Powers of CCC regarding matters related to Police Royal Commission

(1) The CCC may perform any of its functions under the Corruption and Crime Commission Act 2003 in relation to anything done by, to or in relation to the Police Royal Commission.

(2) Without limiting subsection (1) or any other power of the CCC, the CCC may continue any investigation or other matter commenced but not completed by the Police Royal Commission, and may for this purpose adopt any evidence taken or assessments made by the Police Royal Commission.

(3) Accordingly, the Corruption and Crime Commission Act 2003 has effect, for the purposes of this section, with any necessary adaptations and with such modifications as may be prescribed by the regulations.

Warrants and emergency authorisations continued in force

(1) In this section —

commencement means the commencement of this Division.

(2) Any warrant issued under section 13, 14 or 17 of the Surveillance Devices Act 1998 to an officer of the Police Royal Commission and in force immediately before the commencement continues in force, subject to any condition or limitation on its issue and with necessary changes, as if it were issued to an officer of the CCC.

(3) Any emergency authorisation issued under section 21 of the Surveillance Devices Act 1998 to an officer of the Police Royal Commission and in force immediately before the commencement continues in force, subject to any condition or limitation on its issue and with necessary changes, as if it were issued to an officer of the CCC.

Assumed identity approvals continue in force

Any assumed identity approval granted under section 22 of the Royal Commission (Police) Act 2002 and applying to an officer of the Police Royal Commission immediately before the end of the Police Royal Commission continues in force as if it were granted to an officer of the CCC under Part 6 Division 3 of the Corruption and Crime Commission Act 2003 and that Division applies to and in relation to the approval as if the officer to whom it applies were an officer of the CCC.

Records

(1) In this section —

records includes —

(a) evidence in any form; and

(b) information and other things.

(2) At the end of the Police Royal Commission (as determined under section 3(2) of the Royal Commission (Police) Act 2002) all records in the possession of the Police Royal Commission not transferred to the CCC under section 19(4) of the Corruption and Crime Commission Act 2003 —

(a) are to be transferred to the CCC; and

(b) become records of the CCC and may be dealt with accordingly.

”.

Defined terms

[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]

Defined term Provision(s)

1968 Act 3(1)

ACC Act 3(1)

agency 21

appropriate entry 24(3)

assumed identity approval 22(1)

chief employee 21

chief executive officer 21

Commission 3(1)

Commissioner 3(1)

controlled activity 28

controlled operation 28

corrupt conduct 3(1)

court 25(4), 43(5)

criminal conduct 3(1)

Deputy Parliamentary Commissioner 3(1)

disciplinary measures 3(1)

integrity testing programme 30(1)

legal practitioner 3(1)

officer of the Commission 3(1)

officer of the Parliamentary Commissioner 3(1)

organisation 21

Parliamentary Commissioner 3(1)

police complaint 17

premises 3(1)

produce 43(5)

public authority 3(1)

public officer 3(1)

reasonable excuse 41(7)

restriction on disclosure 13(2)

the matter 18(1), 19(1)

Western Australia

Royal Commission (Police) Act 2002

Western Australia

Royal Commission (Police) Act 2002

Contents

Part 1 — Preliminary

Short title 2
Commencement 2
Interpretation 2
Relationship with Royal Commissions Act 1968 4

Part 2 — Obtaining information, documents and other things

Power to obtain information 5
Power to obtain documents etc. 6
Power to enter public premises 6
Legal professional privilege 7

Part 3 — Attendance before the Commission

Arrest of witness 8
Conditional release of a witness 9
Review by Supreme Court 10

Part 4 — Secrecy, disclosure and admissibility

Restriction on publication of evidence 11
Restriction on disclosure 11
Application of ACC Act 12
Disclosure of information and giving of evidence by Parliamentary Commissioner 13
Application of Telecommunications (Interception) Western Australia Act 1996 13

Part 5 — Investigation of police complaints by Commission

Interpretation 14
Termination of police investigation 14
Termination of Parliamentary Commissioner investigation 15
This Part does not require information to be disclosed by Commission 16

Part 6 — Assumed identities

Interpretation 17
Approval for assumed identity 17
What an approval authorises 18
Duties of agencies and organisations 18
Identity of certain officers not to be disclosed in legal proceedings 19

The Act organises its main concepts around investigatory reach, secrecy and integrity techniques, legal immunity, and inter‑agency coordination. Key statutory concepts are defined and operate through discrete Parts.

Commission and Commissioner: “Commission” is specifically the Royal Commission constituted by the commission dated 12 December 2001 and any replacement commission with similar terms of reference; “Commissioner” is the person appointed to be the Commission (s 3(1)). The Act applies to that Commission and any replacement with similar terms of reference (s 3(1)(a)-(b)). The Act also treats the Commission, for many purposes, as if it were part of the Royal Commissions Act 1968 (s 4(1)).
Corrupt conduct and criminal conduct: defined expansively by reference to the Anti‑Corruption Commission Act 1988 definitions (s 3(1)) and used as the threshold for exercising investigatory and entry powers (s 7(2)). Controlled activity and controlled operation are defined in Part 7 (s 28).
Compulsion and contempt: Notices under s 5 and s 6 impose statutory obligations to produce information or attend and produce documents. Failure to comply is contempt (s 5(4), s 6(3)) except where specified protections apply (s 41(5) reasonable excuse limits). The Commissioner may present a certificate to the Supreme Court in contempt cases, and such certificates are prima facie evidence (s 41(1)-(3)).
Entry and inspection: s 7 authorises entry to public premises of public authorities and public officers, inspection and copying for the purpose of investigating corrupt or criminal conduct, even overriding common law public interest objections, privileges and duties of secrecy except where parliamentary privilege applies (s 7(4)-(5)). Public authorities must provide necessary facilities (s 7(3)).
Legal professional privilege: the Act preserves LPP for persons required to produce material under ss 5-7 (s 8(1)), but explicitly removes any privilege of a public authority or public officer in that capacity (s 8(2)).
Coercive attendance and detention: Commissioner warrants for apprehension may be issued without or before a summons in specified circumstances and authorise detention until released by the Commissioner (s 9). Release can be conditioned; breach is a criminal offence with specified maximum penalties (s 10).
Restrictions on publication and disclosure: the Commissioner may direct non‑publication of evidence or identifying information (s 12). Notices and summonses can carry restrictions on disclosure of their existence or subject (s 13). These restrictions carry criminal penalties (s 12(2), s 13(3)).
Assumed identities: Part 6 permits written approvals for officers to acquire and use assumed identities, authorises false representations and acquisition of documents for the assumed identity, requires agencies to create or provide documents consistent with the assumed identity, and protects participants from liability for good‑faith acts (s 22-26). Courts are to protect identities in proceedings unless interests of justice require otherwise (s 25).
Controlled operations and integrity testing: Part 7 authorises controlled operations that may involve activities that would otherwise be unlawful, and integrity testing programmes designed to present police officers with opportunities that might reveal corruption or lack of integrity; authorisations are written, time‑limited and may be varied or cancelled (s 29-30). Statutory protections from criminal liability apply to authorised participants; activities engaged in in good faith and within the authorisation do not constitute corrupt or criminal conduct for the purposes of the Act (s 32).
Interaction with surveillance and interception laws: the Act inserts application provisions into the Surveillance Devices Act 1998 and the Telecommunications (Interception) Western Australia Act 1996 so that the Commission may use the regimes that otherwise applied to the ACC (s 36; s 38). These adaptations operate as if the Royal Commission were the ACC and as if Commission officers were ACC officers, subject to specified tables of exceptions and to expiry when the Commission ends (s 36(2)-(5); s 3(3)).
Inter‑agency primacy and notice obligations: notification by the Commissioner suspends or requires discontinuance of police or Parliamentary Commissioner investigations into the same matter (s 18-19). The Commission is not required to disclose information to those agencies (s 20).
Accountability mechanisms: the Act requires the Commission to report information about assumed identities, controlled operations and warrants to the Attorney General who must lay those reports before Parliament (s 27, s 34, s 36(6)-(7)). FOI exemptions and secrecy obligations narrow public access to certain material (s 46, s 43).

These concepts create a legal architecture that balances intrusive investigatory powers, covert techniques and conferral of immunities with procedural safeguards such as judicial review of detention (s 11), limited reporting to Parliament (s 27, s 34) and statutory limits on the exercise of powers to the life of the Commission (s 47).

The Act places duties and creates risks for multiple classes of actors. The text specifies who must act, who decides, and who bears exposure.

The Commission and Commissioner: centralised decision‑maker. The Commissioner controls issuance of notices (s 5, s 6), entry authorisations (s 7), arrest warrants (s 9), assumed identity approvals (s 22), controlled operation and integrity testing authorisations (s 29-30), and non‑publication or disclosure directions (s 12-13). Many powers require written authorisations signed by the Commissioner (s 22(2)(d); s 29(2)(h); s 30(3)(h)). The Commissioner decides what is necessary in the public interest for disclosure under s 43(3)(d).
Public authorities and public officers: subject to production notices, premises inspections and obligations to provide facilities (s 5, s 6, s 7). The Act removes any privilege of a public authority or public officer in that capacity from the protection of legal professional privilege (s 8(2)). Chief executive officers and chief employees of agencies are expressly required to prepare and provide documents and to make entries in registers to support assumed identities on presentation of an assumed identity approval (s 24).
Police Force and Commissioner of Police: their investigatory prerogative is curtailed in matters the Commissioner notifies as under investigation by the Commission. The Commissioner of Police must not commence or must discontinue investigations of notified matters, must take reasonable steps to ensure police officers do not investigate them, and is absolved from duties relating to investigation of those matters so far as they relate to bringing offenders before courts (s 18). The police remain a party to arrangements agreed with the Commission (s 18(3)), and investigations may resume after completion of the Commission’s handling (s 18(4)).
Parliamentary Commissioner for Administrative Investigations and officers: required to discontinue or not commence investigations notified as being investigated by the Commission and to take steps to prevent their officers from investigating (s 19). The Parliamentary Commissioner may disclose information to the Commission and give evidence despite other confidentiality provisions (s 15).
Witnesses and persons required to provide information: persons served with notices may be required to produce information and documents; false or misleading statements may be contempt (s 5(4)). Statements produced under s 5 are not admissible against the producer in civil or criminal proceedings except for contempt, offences under this Act or the 1968 Act, or disciplinary measures (s 5(5)).
Officers of the Commission who carry out assumed identities, participate in controlled operations or integrity testing: they are authorised to engage in otherwise unlawful activities if done in accordance with written approvals and in good faith; they receive immunity from criminal liability for acts done in good faith under an assumed identity or an authorised operation (s 26(1), s 32(1)), and protection from civil claims (s 45).
Agencies and organisations asked to create or alter official records: chief executive officers and chief employees must create documents or make register entries consistent with an assumed identity and cancel them when directed. The Act authorises that activity and immunises those officials from criminal liability for such conduct done in response to an assumed identity approval (s 24, s 26).
Courts and tribunals: courts must protect the identity of officers operating under assumed identity approvals in proceedings unless the court considers the interests of justice require disclosure, and can permit appearance under assumed identities, code names or numbers (s 25). Courts receive Commissioner certificates as conclusive evidence for specified matters (s 26(3), s 33).
Media and public: subject to non‑publication and disclosure restrictions, potentially criminalised under s 12 and s 13 if they publish material contrary to Commissioner directions or breach disclosure restrictions attached to notices and summonses.
The Attorney General and Parliament: designated recipients of reports about assumed identities, controlled operations and surveillance warrant use; the Attorney General must lay those reports before each House of Parliament as soon as practicable (s 27(2), s 34(2), s 36(7)).

Practical burdens fall on public authorities required to prepare documentation, to provide facilities for inspections (s 7(3)), and to maintain or alter registers consistent with assumed identities (s 24(1)(b)). Risk exposure is concentrated on those who assist witnesses or provide information: they may face contempt proceedings for non‑compliance (s 41), and the Act narrows legal defences such as privilege against self‑incrimination for production of documents (s 41(7)). The Commission’s immunities and statutory secrecy reduce some exposures for its own officers and participating officials (s 45, s 43), while exposing journalists and third parties to criminal penalties for unauthorised publication (s 12).

This section summarises statutory duties imposed by the Act and the rights and protections it creates, with pointers to the controlling provisions.

Duties imposed

Produce statements of information: public authorities and public officers served with notices under s 5 must produce a statement of information as specified, by the time fixed and to the person specified (s 5(1)-(2)). Notices may allow a specified class of person to act on behalf of the authority (s 5(3)). Failure to comply renders the person liable to contempt under s 5(4).
Attend and produce documents: persons served under s 6 must attend and produce documents or things specified. Notices may permit others to act on behalf of the person (s 6(2)). Non‑compliance is contempt (s 6(3)).
Facilitate inspections: public authorities and public officers must provide necessary facilities to enable inspection powers under s 7(1) to be exercised (s 7(3)).
Cease investigations: the Commissioner of Police and the Parliamentary Commissioner must not commence, or must discontinue, investigations into matters notified by the Commission and must take reasonable steps to ensure their officers do not conduct such investigations (s 18(1)(a)-(b); s 19(1)(a)-(b)).
Create and alter records: chief executive officers and chief employees must prepare and provide documents specified in an assumed identity approval and make entries in registers consistent with the assumed identity (s 24(1)). They must cancel such evidence and entries on direction (s 24(2)).
Obey non‑publication and disclosure directions: persons to whom directions are given under s 12 and persons served with notices or summonses containing a restriction on disclosure are obliged to comply with those restrictions (s 12(1); s 13(3)). The s 13(4) exceptions permit necessary internal disclosures to obtain compliance or legal advice, and disclosures in legal proceedings.

Rights and protections

Legal professional privilege preserved for persons: individuals may claim legal professional privilege when required to produce a statement, document or facility under ss 5-7 (s 8(1)). This does not extend to public authorities acting in their official capacity (s 8(2)).
Non‑admissibility of compelled statements: a statement of information produced under s 5 is not admissible against the person in civil or criminal proceedings except for contempt, offences under this Act or the 1968 Act, or disciplinary measures (s 5(5)). This limits the use of compelled statements against their producers.
Judicial review and appeal rights: witnesses detained under s 9 who have not been released or whose release is conditional may apply to the Supreme Court for review; the Court may set aside or affirm decisions or make any order the Commissioner could make regarding detention or release (s 11).
Reasonable excuse defence for contempt charges: s 41(5) provides defences for persons alleged to have failed to comply with notices under s 5 or s 6, where the person establishes a reasonable excuse or proves the document was not relevant. “Reasonable excuse” is defined by reference to what would excuse a similar failure by a witness before the Supreme Court, but excludes claims of self‑incrimination or obligations of secrecy as an excuse (s 41(7)).
Protections for officers and others acting in good faith: the Act displaces criminal and civil liability for good‑faith acts done pursuant to the Act by officers, chief executive officers and other persons, and extends protection and immunity afforded by the 1968 Act (s 45(1)-(4)).
Immunity for participants in authorised activities: an officer authorised to use an assumed identity or to participate in an authorised controlled operation or integrity testing programme is not criminally liable for acts done in good faith and in accordance with the authorisation, and activities so engaged in do not constitute corrupt or criminal conduct for the purposes of the Act (s 26(1), s 32(1)). Additionally a Commissioner’s certificate constitutes conclusive evidence of the matters certified in legal proceedings (s 26(3), s 33).
Confidentiality protections for officers’ information: officers of the Commission are subject to secrecy obligations (s 43(1)); they cannot be compelled to produce documents or divulge matters that came to their notice in the exercise of their functions, except for prosecutions for corrupt or criminal conduct or for disciplinary measures (s 43(2)).

Statutory limits and temporal rights

Time‑limited authorisations: authorisations for assumed identities, controlled operations and integrity testing programmes are written and time limited to a period not exceeding six months, subject to variation or cancellation by the Commissioner (s 22(2)(f)-(5); s 29(2)(f), s 29(6); s 30(3)(f)-(7)). The Commission’s powers under specified sections cease at the end of the Commission (s 47).
Reporting and parliamentary oversight: while many powers are exercisable by the Commissioner, the Act requires the Commission to furnish reports about assumed identities and authorised operations to the Attorney General, who must lay them before Parliament (s 27, s 34, s 36(6)-(7)). This confers a limited public accountability mechanism.

In summary, the Act imposes significant compliance duties on public authorities, police, Parliamentary Commissioner structures and witnesses, while conferring wide discretionary authorities on the Commissioner and legal protections for authorised covert activities and Commission officers. Rights to procedural review and protections against use of compelled statements in later proceedings are preserved but circumscribed.

The Act establishes criminal penalties, contempt mechanisms and supervisory procedures. Enforcement bifurcates into criminal offences, contempt processes, and internal administrative safeguards governed by the Commissioner.

Specified criminal penalties

Non‑publication and disclosure offences: contravention of a non‑publication direction under s 12 constitutes an offence punishable by imprisonment for 12 months and a fine of $4 000 (s 12(2)). Similarly, breach of a restriction on disclosure attached to a notice or summons under s 13(3) carries the same penalty: imprisonment for 12 months and a fine of $4 000.
Conditional release breach: a witness who without reasonable excuse fails to comply with a condition imposed on their release under s 10 is guilty of an offence punishable by imprisonment for two years and a fine of $8 000 (s 10(3)). This is a comparatively high penalty for non‑compliance with release conditions.
Assumed identity disclosures: any person who discloses information in contravention of an order made under s 25 is guilty of a crime with maximum penalty imprisonment for five years and a fine of $100 000 (s 25(3)). This is the highest specified penalty in the Act and is directed at protecting the identities of officers operating under assumed identities.
Victimisation: a person who prejudices or threatens to prejudice the safety or career of, intimidates, harasses, or otherwise detrimentally affects another because they have assisted or may assist the Commission or furnished information is guilty of a crime punishable by imprisonment for five years and a fine of $100 000 (s 42(1)-(2)). This criminalises reprisals against witnesses or informants.

Contempt and judicial enforcement

Contempt jurisdiction: failure to comply with notices under s 5 or s 6 is contempt of the Commission (s 5(4), s 6(3)). The Commissioner can present a certificate to the Supreme Court alleging contempt; such certificate is prima facie evidence and the Supreme Court may deal with the matter as if the contempt were of that Court (s 41(1)-(3)). The Supreme Court retains powers to affirm or set aside decisions regarding detention or conditions of release (s 11).
Procedural protections: s 41(5)-(7) provides that a person is not liable to punishment for contempt if they establish a reasonable excuse or prove the document or thing was not relevant. However, the definition of “reasonable excuse” excludes the claim that producing the material might incriminate the person or breach an obligation of secrecy. This narrows some defences in contempt proceedings.

Immunity and protection from liability

Immunities for authorised conduct: participants in assumed identity schemes, controlled operations and integrity testing programmes have statutory protections from criminal liability for acts done in good faith and in accordance with authorisation (s 26(1), s 32(1)). Moreover, the Commissioner, chief executive officers and officers acting in good faith executing the Act are protected from civil or criminal liability and claims (s 45).
Evidentiary certificates: certificates signed by the Commissioner stating that a specified person was authorised under Part 6 or Part 7 are admissible and conclusive evidence in legal proceedings (s 26(3), s 33). This evidentiary device reduces the need for oral proof of authorisation and streamlines enforcement while granting deference to Commissioner attestations.

Operational enforcement features

Execution of arrest warrants: a warrant under s 9 may be executed by Police Force members or any person to whom it is addressed, and reasonable force may be used to enter premises for execution (s 9(7)). A warrant allows apprehension and detention until released by order of the Commissioner (s 9(6)).
Investigation cessation obligations: s 18 requires the Commissioner of Police to discontinue or not commence an investigation when notified by the Commissioner, to take all reasonable steps to ensure that police officers do not investigate, and provides that notification absolves the Commissioner of Police and other police officers from duties with respect to crime investigation as they relate to the notified matter (s 18(1)(a)-(c)). Failure to comply could give rise to administrative or legal consequences, though the Act does not specify penalties for non‑compliance by those officials; the enforcement mechanism is the obligation itself backed by institutional and potential judicial scrutiny.
Surveillance and interception avenues: the Act adapts existing surveillance and interception statutes for the Commission’s use (Part 8 and Part 9). Those regimes include their own warranting, authorisation and enforcement mechanisms now usable by the Commission while the Commission operates (s 36, s 38).

Oversight and Parliamentary reporting

Reports to Attorney General: the Commission may furnish reports containing information about assumed identity approvals and controlled operation authorisations to the Attorney General; the Attorney General must cause such reports to be laid before each House of Parliament as soon as practicable (s 27(2), s 34(2), s 36(6)-(7)). These are the Act’s explicit statutory accountability routes.

Overall, the Act interleaves strong enforcement tools with statutory immunities for authorised conduct, and it centralises enforcement and most discretion in the Commissioner while providing judicial recourse for detained witnesses and some mandated reporting lines to the Attorney General and Parliament.

The Act is drafted to operate alongside, and in certain respects to override or adapt, other statutory regimes. Its interactional architecture has specific textual provisions.

Relationship with the Royal Commissions Act 1968

The Act is to be read as if it forms part of the Royal Commissions Act 1968 for the Commission’s purposes (s 4(1)). The Act’s provisions are stated expressly to be in addition to, and not derogation of, any provisions of the 1968 Act, except where this Act specifically provides otherwise (s 4(2)). The 1968 Act must not constrain the exercise of functions conferred by or under this Act (s 4(3)). Where the Act explicitly states it operates "in place of" certain 1968 Act provisions, those are operative substitutions (for example, s 12 operates in place of s 19B of the 1968 Act, and s 41(4) treats certain failures or contraventions in the 1968 Act as contempts of the Commission).

Interaction with ACC Act and surveillance/interception regimes

ACC Act exclusions and inclusions: the Act imports definitions from the ACC Act (s 3(1)) and explicitly provides that s 14 of the ACC Act does not apply to the Commissioner or to officers of the Commission, and that the ACC Act does not prevent the Commissioner or authorised officers from furnishing or producing evidence or documents for the Commission’s functions (s 14). This permits information sharing and use within the Commission notwithstanding some ACC Act limitations.
Surveillance Devices Act 1998: the Act inserts s 4B into the Surveillance Devices Act to operate as if references to the ACC, ACC officers and authorised persons included references to the Royal Commission and officers of the Commission (s 36(2)). It further adapts specified provisions so that references to suspected criminal offence, offence and suspected offence are read to include suspected or actual corrupt conduct for the Commission’s purposes (s 36(3)). The inserted provisions permit the Commission to use surveillance device warranting regimes and make the Commission subject to certain surveillance Act obligations and reporting (s 36(4)-(7)). The Surveillance Devices Act adaptations include tables of specific provisions and exceptions.
Telecommunications (Interception) WA Act 1996: the Act inserts a s 3A so that definitions in the interception Act include the Royal Commission and treat the Commission as an “agency”, an “eligible authority” and as having officers and relevant certifying officers for the Commission’s purposes (s 38). This allows interception powers to be exercised in relation to the Commission within that Act’s warranting and authorisation architecture.
Expiry of the surveillance/interception adaptations: section 3(3) expressly provides that s 4B of the Surveillance Devices Act and s 3A of the Telecommunications Act expire when the Commission ends. The Act therefore temporally limits the application of those other statutes to the Commission’s lifespan.

Interaction with Parliamentary Commissioner Act and Parliamentary Privileges

Disclosure overrides: s 15 allows the Parliamentary Commissioner and authorised deputies or officers to disclose information obtained under the Parliamentary Commissioner Act 1971 or other Acts to the Commission and to give evidence and produce documents, applying despite s 23 of the Parliamentary Commissioner Act and any other law. This provision creates a direct pathway for Parliamentary Commissioner material to be used by the Commission.
Parliamentary privilege: s 7(5) expressly states that nothing in s 7 affects the operation of the Parliamentary Privileges Act 1891. The Act therefore preserves parliamentary privilege protections against inspection of parliamentary premises or materials.

Interaction with Police and Prisons Acts

Police investigatory suspension: notification from the Commission requires the Commissioner of Police to discontinue or not commence an investigation of the notified matter, and to take steps to ensure investigations are not conducted by police officers (s 18(1)). The effect is that investigatory primacy shifts to the Commission for notified matters, subject to arrangements agreed with the Commissioner of Police (s 18(3)).
Prisons Act amendment: s 40 amends s 22 of the Prisons Act 1981 to enable prisoners to be brought before the Commission on written order by a Commissioner appointed to the Commission or the superintendent of the prison where the prisoner is confined (s 40(2)). This creates a procedural hook for detention or attendance of incarcerated persons at Commission proceedings.

Evidence and procedural law

Admissibility protections: statements produced under s 5 are not admissible against the producer in civil or criminal proceedings except in limited categories (s 5(5)). Conversely, s 31(2) provides that in any criminal proceedings no evidence is to be excluded nor proceedings stayed only because a person who participated in an authorised controlled operation or integrity testing programme was not authorised to participate. The two provisions interact to calibrate how compelled or covertly obtained materials may be used in later proceedings.
Certificates as conclusive evidence: the Commissioner’s certificates under s 26(3) and s 33 are admissible and conclusive evidence in legal proceedings of matters certified, which affects standard evidentiary burdens and proof.

Freedom of Information Act

FOI exemption: Part 6 and Part 7 matter is expressly exempt matter for the purposes of the Freedom of Information Act 1992 (s 46). That limits public access to records created for assumed identity and controlled operations programmes.

Corruption and Crime Commission Act 2003 transitional links

Compilation notes include Division 4 of the Corruption and Crime Commission Amendment and Repeal Act 2003 which provides for the CCC’s power to perform functions in relation to matters done by the Police Royal Commission and for continuation of warrants, assumed identity approvals and records into the CCC, including transfer of records on the end of the Police Royal Commission (compilation endnotes). Those transitional provisions affect the post‑Commission disposition of records and continuing investigative work by successor corruption agencies.

In sum, the Act is designed to operate alongside existing investigative and surveillance regimes, to give the Commission access to those regimes' warranting powers, to ensure inter‑agency deference to the Commission on notified matters, and to constrain public access to certain materials. It preserves parliamentary privilege in a limited way, but otherwise expands investigatory reach while creating statutory protections and evidentiary devices that interact with evidence law and administrative investigations.

The Act text and compilation table record subsequent amendments and related consequential provisions that have modified or integrated its operation.

Immediate commencement: The Act commenced on the day it received Royal Assent (s 2). The compilation table records assent on 28 June 2002 and commencement on the same date.
Amendments recorded in the compilation table:
- Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 s 63 (No. 65 of 2003), assent 4 December 2003, commenced 1 January 2004. The text indicates s 3 was amended by this Act (see note to s 3).
- Corruption and Crime Commission Amendment and Repeal Act 2003 s 71 (No. 78 of 2003), assent 22 December 2003, commenced 1 January 2004. This amendment is referenced in s 3 amendment note and in the compilation endnote which reproduces Division 4 concerning the CCC’s powers in relation to Police Royal Commission matters (endnote Division 4).
- Legal Profession Act 2008 s 700 (No. 21 of 2008), assent 27 May 2008, commenced 1 March 2009. This amendment changed the definition of “legal practitioner” in s 3(1).
Specific textual amendments reflected in the body of the Act:
- Section 3 has been amended to include updated cross‑references and definitions reflecting later Acts, including amendments to the terms “Commission” and related definitions (s 3 note indicates amendments by Nos 65 and 78 of 2003 and No. 21 of 2008 s 700).
- The Act’s surveillance and interception adaptations are time‑limited (s 3(3)) and were intended to expire upon the end of the Commission.
Transitional arrangements to the Corruption and Crime Commission:
- The compilation endnotes reproduce Division 4 of the Corruption and Crime Commission Amendment and Repeal Act 2003 which provides that the CCC may perform functions in relation to matters done by the Police Royal Commission, may continue investigations commenced by the Police Royal Commission and may adopt evidence taken by it (endnote Division 4, s 67). The Division also provides that warrants and emergency authorisations issued under the Surveillance Devices Act to Police Royal Commission officers continue in force as if issued to CCC officers (s 68), assumed identity approvals continue in force and are to be treated as CCC approvals (s 69), and records and evidentiary material were to be transferred to the CCC at the end of the Police Royal Commission (s 70).
Minor technical edits and statutory housekeeping are noted in the defined term table and endnotes.

These amendments show the Act was designed to operate in the context of institutional change in corruption and integrity agency architecture. The 2003 provisions specifically contemplate continuation and adoption of material and authorities by the subsequent Corruption and Crime Commission, and the 2008 amendment updates terminology to align with the Legal Profession Act 2008 definition of legal practitioner.

The Act also contains internal sunset and expiry rules. Section 3(2) provides that the Commission is taken to have ended on the day fixed by the Governor and published in the Gazette; section 3(3) provides that inserted sections in surveillance and interception Acts expire at the Commission’s end; and section 47 prohibits exercise of certain powers after the Commission ends. Those textual features are part of the Act’s temporal amendment design, limiting the reach of certain powers to the life of the Commission.

The Act text contains no case law or reported litigation recorded in the statutory compilation itself. The Act does, however, create and preserve several procedural avenues for judicial engagement and provides legal mechanisms that shape litigation risk post‑enquiry. The Act’s litigation‑facing architecture is therefore inferable from its provisions.

Judicial recourse and processes provided in the Act

Supreme Court review of detention and release conditions: section 11 provides a direct right of review to the Supreme Court for a witness who has not been released by the Commissioner under s 9(6) or whose release is conditional. The Court may affirm or set aside the Commission’s decision or make any order that the Commissioner may make in relation to detention or release, and may act where the Commissioner has not made a decision within a reasonable time. Orders of the Supreme Court under s 11(2) are taken to be orders of the Commissioner (s 11(4)). This creates an express judicial oversight mechanism that can be invoked.
Contempt adjudication: the Commissioner may present a certificate to the Supreme Court alleging contempt (s 41(1)). Such certificates are prima facie evidence and the Court has jurisdiction as if the contempt were of that Court (s 41(2)-(3)). Defences such as reasonable excuse are available, though limited by s 41(7) which excludes claims of self‑incrimination or obligations of secrecy as excuses.
Evidentiary certificates: certificates signed by the Commissioner are admissible and conclusive evidence of matters specified (s 26(3), s 33). This may reduce factual disputes in litigation concerning whether authorisations existed, but it also raises points of challenge regarding whether the exercise of discretion was in good faith or whether conditions of authorisation were lawfully satisfied.
Admissibility constraints and uses: statements of information produced under s 5 are not admissible against the person in civil or criminal proceedings except in restricted categories (s 5(5)). Conversely, s 31(2) provides that in criminal proceedings no evidence is to be excluded and no proceedings stayed solely by reason that a person who participated in an authorised controlled operation or integrity testing programme was not authorised. These rules interact with litigation over the admissibility of evidence obtained by or through Commission activities.
Privilege and disclosure tensions: the Act preserves legal professional privilege for persons (s 8(1)), but expressly removes privilege otherwise available to public authorities or public officers in that capacity (s 8(2)). Litigation might therefore involve disputes about privilege claims and whether specific material is privileged.

Potential litigation issues implied by the Act

Judicial review of Commissioner discretion: the Commissioner has broad discretion to authorise covert techniques, impose publication or disclosure restrictions, and decide whether to notify agencies to discontinue investigations. These discretionary powers are typically reviewable by courts for jurisdictional error, procedural fairness or unreasonableness. The Act itself does not specify a right to merits review of those decisions but the Supreme Court review mechanisms in respect of detention and the general supervisory jurisdiction of the Court remain available.
Controversies over compelled production: because production orders can override privileges of public authorities and duties of secrecy except in limited cases (s 7(4)), disputes could arise in litigation over whether a claimed obligation of confidentiality or privilege is properly characterised and whether a “reasonable excuse” exists to avoid contempt (s 41(5)-(7)).
Use of evidence in criminal proceedings: the Act creates protections for persons compelled to produce statements while enabling use of other Commission‑obtained evidence in prosecutions. Litigation can be expected over the admissibility and fairness of using material obtained through controlled operations or assumed identities in subsequent prosecutions. Section 31(2) reduces the scope for exclusion of evidence solely on authorisation grounds but does not preclude other fairness or legality challenges.
Secrecy orders and suppression: s 25 requires courts to hold private parts of proceedings relating to the real identity of assumed identity officers and to suppress evidence that might identify those officers unless the court considers the interests of justice otherwise. Challenges may arise where defendants or litigants argue for disclosure of identity on fairness grounds.
Victimisation and obstruction prosecutions: the Act creates substantive offences (s 42) which courts will need to interpret in the context of what constitutes “assist[ing] the Commission” and causal links to detriment or threats. Prosecutions under these provisions may raise evidentiary and definitional issues.

No reported cases appear in the Act text or compilation notes. Where litigation does occur, the statutory constructs most likely to generate disputes are: the exercise of discretion by the Commissioner in authorisations and secrecy directions; competing claims of privilege and reasonable excuse in contempt proceedings; admissibility of evidence derived from authorised covert activity; and procedural fairness in detaining and releasing witnesses. The Act’s design provides express routes for the Supreme Court to exercise supervisory jurisdiction in particular circumstances and supplies evidentiary devices (Commissioner’s certificates) that will shape litigation practice.

This section flags textual features and practical traps that arise from the Act’s design and that practitioners and affected entities should watch closely. Each “gotcha” is grounded in a specific provision.

Legal professional privilege exception for public authorities
- While s 8(1) preserves legal professional privilege for persons, s 8(2) removes any privilege of a public authority or public officer in that capacity. A public body or official cannot rely on LPP to refuse production under ss 5-7. Agencies that assume privilege protections exist risk contempt.
Narrow definition of reasonable excuse
- In contempt proceedings, s 41(5) and s 41(7) provide for reasonable excuse defences but expressly exclude as excuses claims that producing material might incriminate the person or breach an obligation of secrecy. This narrows the availability of self‑incrimination and confidentiality defences where notices require production.
Broad entry powers despite common law protections
- Section 7(4) allows inspection powers to be exercised despite rules of law that might justify objections on grounds of public interest, privilege of a public authority or duty of secrecy. The only statutory protection is for parliamentary privilege (s 7(5)). Agencies must therefore be prepared to receive inspections even where common law or contractual duties might suggest immunity.
Commissioner certificates are conclusive evidence
- Certificates signed by the Commissioner under s 26(3) and s 33 are admissible and conclusive evidence. That shifts the litigation burden: once a certificate is produced, challengeable only on limits like bad faith or lack of jurisdiction, rather than on factual proof of authorisation.
Assumed identity authorised falsification of records
- Part 6 authorises chief executive officers or chief employees to prepare and provide documents specified in an assumed identity approval and to make register entries that are "not inconsistent" with the assumed identity being real (s 24(1)(a)-(b)). Officials authorised under s 26 receive protection from criminal liability for such conduct. Agencies must have robust internal controls to ensure this power is used only under lawful authorisation and that cancellation directions are promptly obeyed (s 24(2)).
High penalties for disclosure and victimisation
- Disclosure of assumed identities in contravention of court orders carries up to five years imprisonment and $100 000 fine (s 25(3)). Victimisation offences carry the same maximum penalties (s 42(1)-(2)). These high penalties impose significant criminal risk for what might otherwise be routine investigatory leaks or workplace actions.
Non‑admissibility of compelled statements has limits
- Statements produced under s 5 are not admissible against the person in civil or criminal proceedings except for contempt or offences under this Act or the 1968 Act or disciplinary measures (s 5(5)). However, this protection does not immunise other evidence obtained through the Commission’s activities from use in prosecutions, and s 31(2) limits exclusion of evidence in criminal proceedings on the sole ground of an unauthorised participant.
Discontinuance of police and Parliamentary Commissioner investigations
- Notification by the Commission to the Commissioner of Police or Parliamentary Commissioner requires discontinuance of investigations and steps to prevent officers investigating the notified matter (s 18(1), s 19(1)). This constructive primacy can create operational gaps if coordination arrangements are not in place, and it centralises the investigatory decision. Agencies should expect potential friction and plan co‑operation arrangements.
FOI exemption for Parts 6 and 7 material
- Material created or maintained for the purposes of assumed identity or controlled operations is explicitly exempt from FOI (s 46). This limits transparency and the ability of affected persons to seek records, increasing the importance of administrative recordkeeping and internal oversight.
Temporal limits and administrative tracking

Several powers are time‑limited to the life of the Commission: inserted sections in surveillance and interception Acts expire at the Commission’s end (s 3(3)); s 47 prevents exercise of specified powers beyond the Commission’s end. Entities must track the Commission’s formal end date as published in the Gazette to know when these authorities lapse.

Delegation narrowly constrained

The Commissioner may delegate certain functions (s 5-7, and s 9 or s 10 of the 1968 Act) to the Senior Counsel Assisting but only during the Commissioner’s illness or absence from Perth or the State (s 44). This limits operational flexibility and concentrates decision‑making.

Secrecy obligations on officers

Officers of the Commission are criminalised for recording or divulging information obtained in the course of their functions (s 43(1)) with penalties of two years imprisonment and $8 000 fine. Operationally, this imposes strict internal controls and training needs to avoid inadvertent breaches.

Admissibility versus fairness tensions

The Act’s provisions on admissibility and exclusion, certificates and permitted covert conduct create potential tensions with defendants’ rights and administrative fairness in subsequent criminal or disciplinary proceedings. Practitioners should be alert to how authorisations were obtained and whether authorised conduct was within scope and in good faith.

Each of these points is grounded in the Act’s text and reflects implementation risks around privilege, immunity, secrecy, and the Commission’s centralised discretion. Entities interacting with the Commission should have protocols for notices, assumed identity approvals, control of registers, and legal strategies for privilege and contempt disputes.

Practical steps and compliance checkpoints are necessary for public authorities, police, Parliamentary Commissioner offices, agency chief executives, Commission officers and legal advisers. This section sets out a structured compliance checklist tied to statutory obligations.

Establish a single point of contact and process map for notices and summonses
- For public authorities and officers likely to receive notices under s 5 or s 6, nominate legal and operational contacts to receive, log and respond to notices. Ensure notices specify the information or documents required, the due date and the named recipient as required by s 5(2).
- Create standard intake procedures to verify whether a notice contains a restriction on disclosure under s 13 and to secure legal advice promptly where disclosure restrictions are present.
Legal privilege and review procedures
- Train legal and records teams to identify legal professional privilege claims. Although s 8(1) preserves LPP for persons, s 8(2) removes privilege for public authorities in that capacity. Implement a checklist to determine whether the subject is a public authority in its official capacity and whether privilege may apply.
- For contested privilege or relevance, document reasons for refusal and prepare to establish a “reasonable excuse” under s 41(5) in the event of contempt proceedings, noting limitations set out in s 41(7).
Document production and chain of custody
- When complying with s 6 notices, maintain precise records of what was produced, who authorised production, and how documents were delivered. This evidentiary trail is important given s 5(5) non‑admissibility protections and potential subsequent proceedings.
- If the notice permits a person acting on another’s behalf to produce documents (s 5(3), s 6(2)), ensure authorisations are recorded in writing and that the acting person is named or falls within the specified class.
Facilities and inspection readiness
- Public authorities must make facilities available for inspections by authorised Commission officers (s 7(3)). Identify suitable premises, IT access and secure rooms where Commission officers can inspect documents, and ensure staff accompany inspections as needed.
- Prepare a privilege log for inspected materials where possible, separating material claimed to be privileged and marking parliamentary material for consideration of s 7(5).
Responding to arrest warrants and witness orders
- For agencies that may be the subject of s 9 warrants or that may hold persons who are to be brought before the Commission, maintain procedures for receipt and execution of warrants and for managing conditional release orders (s 10). Ensure legal advice is sought immediately when a staff member is subject to detention or conditional release.
- Prepare to use s 11 to seek Supreme Court review where release is withheld or conditions are contested.
Managing assumed identity approvals and agency record changes
- If a chief executive officer or chief employee receives an assumed identity approval presented under s 24, implement a tightly controlled process for preparing and providing documents specified in the approval, including recorded authorisation, chain of custody for generated documents, and minimal staff access to altered registers. Create an audit trail for entries made that are “not inconsistent” with the assumed identity being real (s 24(3)).
- Maintain procedures to cancel documents and entries promptly upon direction by the Commissioner under s 24(2).
- Train staff on the protections in s 26 and the criminal penalties for unauthorised disclosure under s 25(3).
Integrity testing and controlled operations governance
- If involved in authorised integrity testing programmes or controlled operations, ensure written authorisations with the required elements are in place (s 29(2); s 30(3)), and limit participation to named authorised persons or code‑named persons where documentation links identity to code‑names (s 29(4); s 30(5)).
- Implement operational oversight, legal review and evidentiary recordkeeping for each authorised operation, and adhere strictly to authorisation conditions. Record decisions to vary or cancel authorisations.
Confidentiality and officer secrecy obligations
- For officers of the Commission, create strict internal protocols to comply with s 43 secrecy obligations. Limit record creation to that permitted by s 43(3) exceptions and implement secure handling and storage processes for sensitive materials. Provide regular legal training and awareness of the criminal penalties in s 43(1).
Reporting obligations and Parliament transparency
- The Commission must furnish reports to the Attorney General about assumed identities, controlled operations and surveillance warrant applications (s 27, s 34, s 36(6)). For agencies cooperating with the Commission, coordinate with the Commission’s designated contact to ensure timely and accurate reporting where required.
- Agencies should preserve records to enable the Commission to compile accurate reports to the Attorney General and Parliament.
FOI and record management
- Recognise that Part 6 and Part 7 matter is FOI exempt (s 46). Designate records created under those Parts as exempt and restrict access appropriately, while keeping internal oversight and retention schedules consistent with legal and archival obligations.
- Ensure the transfer of records to successor bodies (such as CCC pursuant to transitional provisions) is documented if applicable at Commission end.
Inter‑agency coordination
- Where the Commission notifies the Commissioner of Police or the Parliamentary Commissioner that a matter is under investigation (s 18-19), follow prescribed steps to discontinue investigations or to negotiate arrangements for joint investigations. Prepare memoranda of understanding or protocols to manage investigative responsibility during Commission investigations.
Risk and crisis management
- Given high criminal penalties for disclosure and victimisation (s 25, s 42), implement crisis response plans to manage alleged leaks, threats or reprisals involving staff or witnesses. Preserve evidence, engage legal counsel and notify the Commission where appropriate to secure protective orders.
Tracking Commission life and expiration of powers
- Monitor the Governor’s Gazette for the Commission’s end date under s 3(2) because certain adaptations to surveillance and interception statutes expire on that date (s 3(3)) and several powers cannot be exercised after the Commission ends (s 47). Ensure authorisations and operational practices are constrained accordingly.
Legal supervision and early advice
- Engage counsel early where notices, assumed identity approvals, or controlled operation authorisations are implicated. Counsel should review statutory authorisations, certify compliance with authorisation conditions, advise on privilege and contempt risks, and assist in preparing to respond to Supreme Court processes or criminal investigations.

By operationalising these steps, agencies and affected parties will better align with statutory obligations, reduce inadvertent breaches that attract high penalties, and preserve legal avenues for review and challenge where appropriate. The Act’s detailed authorisation and reporting structures mean that formal written records and legal sign‑offs are central to compliant practice.

Deep Dive

What it does

Current sections