[Index] [Search] [Download] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Criminal Investigation (Covert Operations)
Bill 2008
A BILL FOR
An Act to authorise the use of undercover operations and assumed identities
for the purposes of criminal investigation and the gathering of criminal
intelligence within and outside the State; to establish a certification scheme
for the protection of the identity of certain witnesses; to provide for cross
border recognition of undercover operations, assumed identities and the
certification scheme; to repeal the Criminal Law (Undercover Operations)
Act 1995; and for other purposes.
Contents
Part 1—Preliminary
1 Short
title
2 Commencement
3 Interpretation
Part 2—Undercover operations
4 Approval of
undercover operations
5 Legal immunity of persons taking part in approved
undercover operations
Part 3—Assumed identities
Division 1—Authority to acquire or use assumed
identity
6 Application for authority
7 Determination of
applications
8 Form of authority
9 Period of authority
10 Variation or
cancellation of authority
11 Yearly review of authority
12 Making entries
in register of births, deaths and marriages
13 Cancellation of authority
affecting entry in register of births, deaths and marriages
Division 2—Evidence of assumed
identity
14 Request for evidence of assumed
identity
15 Cancellation of evidence of assumed identity
16 Legal immunity
of officers of issuing agencies
17 Indemnity for issuing agencies and
officers
Division 3—Effect of authority
18 Assumed
identity may be acquired and used
19 Legal immunity of authorised persons
acting under authority
20 Indemnity for authorised persons
21 Particular
qualifications
22 Effect of being unaware of variation or cancellation of
authority
Division 4—Mutual recognition
23 Requests to
participating jurisdiction for evidence of assumed identity
24 Requests from
participating jurisdiction for evidence of assumed identity
Division 5—Compliance and
monitoring
25 Misuse of assumed identity
26 Disclosing information
about assumed identity
27 Record keeping
28 Audit of records
Division
6—Delegation
29 Delegation
Part 4—Witness identity protection
Division
1—Interpretation
30 Interpretation
Division 2—Witness identity protection certificates
for local operatives
31 Chief officer may give witness identity
protection certificate to local operative
32 Protection of decision to give
witness identity protection certificate
33 Form of witness identity
protection certificate
34 Cancellation of witness identity protection
certificate
35 Permission to give information disclosing operative's identity
etc
Division 3—Use of witness identity protection
certificates in proceedings
36 Application and interpretation of
Division
37 Filing and effect of filing of witness identity protection
certificate in court
38 Orders to protect operative's identity
etc
39 Directions to jury
40 Application for disclosure of operative's
identity etc in proceedings
41 Offences
Division
4—Delegation
42 Delegation
Part 5—Application of Act to approvals, authorities or
certificates under corresponding laws
43 Application of Act to
approvals under corresponding laws
44 Application of Act to authorities under
corresponding laws
45 Application of Act to witness identity protection
certificates under corresponding laws
Part 6—Miscellaneous
46 State Records
Act 1997 and Freedom of Information Act 1991 not to
apply
47 Annual report
48 Regulations
Schedule 1—Repeal and transitional
provisions
Part
1—Interpretation
1 Interpretation
Part 2—Repeal of Criminal Law (Undercover
Operations) Act 1995
2 Repeal of Criminal Law (Undercover
Operations) Act 1995
Part 3—Transitional provisions
3 Approved
undercover operations
4 Assumed identities
5 Witness identity
protection
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Criminal Investigation (Covert Operations)
Act 2008.
This Act will come into operation on a day to be fixed by
proclamation.
(1) In this Act, unless the contrary intention appears—
acquire an assumed identity, means acquire evidence of the
identity, and includes taking steps towards acquiring evidence of the
identity;
agency means—
(a) an issuing agency; or
(b) a law enforcement agency,
as the case requires;
approval means an approval under Part 2;
approved undercover operations means—
(a) undercover operations approved under Part 2; or
(b) undercover operations approved—
(i) under the repealed Act; or
(ii) by a law enforcement authority before the commencement of the
repealed Act that are of a type that could reasonably have been approved under
the repealed Act if the repealed Act had been in force when the operations
commenced;
assumed identity—see Part 3;
assumed name—
(a) of a local operative—has the meaning given in
section 33(1)(d)(i);
(b) of an interstate operative—means the name (if any) stated in the
interstate witness identity protection certificate as the interstate operative's
assumed name;
authorised civilian means a person (other than a law
enforcement officer) who is authorised under an authority to acquire or use an
assumed identity;
authorised officer means a law enforcement officer who is
authorised under an authority to acquire or use an assumed identity;
authorised participant in approved undercover operations
means—
(a) a person authorised under the terms of the approval to take part in
the operations; or
(b) in the case of operations that began before the commencement of Part 2
but after the commencement of the repealed Act—a person authorised under
the terms of an approval under the repealed Act to take part in the operations;
or
(c) in the case of operations that began before the commencement of the
repealed Act—a person authorised by a law enforcement authority to take
part in the operations;
authorised person means—
(a) an authorised civilian; or
(b) an authorised officer;
authority means an authority under Part 3;
chief officer—
(a) of a law enforcement agency—
(i) in relation to SA Police—means the Commissioner of
Police;
(ii) in relation to the Australian Crime Commission—means the
Chief Executive Officer of the Australian Crime Commission;
(b) of an issuing agency—means the chief executive officer (however
described) of the agency;
conduct includes any act or omission;
corresponding approval means an approval under a
corresponding law approving undercover operations;
corresponding authority means—
(a) an authority under a corresponding law to acquire or use an assumed
identity in this State; or
(b) an authority under a corresponding law to request the production of
evidence of an assumed identity;
corresponding law means a law of another jurisdiction
declared by the regulations to correspond to this Act, or to a Part (or Parts)
of this Act;
court includes a tribunal or body or person invested by law
with judicial or quasi-judicial powers, or with authority to make an inquiry or
to receive evidence;
court name for an operative (whether a local or an interstate
operative) in relation to proceedings, means a name, other than the operative's
real name, or code used to identify the operative in the proceedings;
criminal activity means conduct that involves the commission
of an offence by 1 or more persons;
doing a thing includes failing to do the thing;
evidence of identity, means a document or other thing that
evidences or indicates, or can be used to evidence or indicate, a person's
identity or an aspect of a person's identity;
false representation does not include a representation made
under an authority under this Act;
government issuing agency, in relation to an authority, means
any of the following named in the authority that issues evidence of
identity:
(a) a person or body (whether incorporated or not) that performs any
function of the government of this State;
(b) a person or body (whether incorporated or not) prescribed by the
regulations for the purposes of this definition;
interstate operative means a person in respect of whom an
interstate witness identity protection certificate is in force;
interstate witness identity protection certificate means a
certificate given under a provision of a corresponding law that corresponds to
section 31;
investigation means an investigation in relation to criminal
activity, including an investigation extending beyond this State;
issuing agency means—
(a) a government issuing agency; or
(b) a non-government issuing agency;
jurisdiction means the Commonwealth or a State or Territory
of the Commonwealth;
law enforcement agency means—
(a) SA Police; or
(b) the Australian Crime Commission;
law enforcement officer means—
(a) in relation to SA Police—a police officer;
(b) in relation to the Australian Crime Commission—a member of staff
of the Australian Crime Commission,
and includes a person who is seconded to a law enforcement agency,
including (but not limited to) a police officer (however described) of another
jurisdiction;
local operative means a person who is or was—
(a) an authorised participant under Part 2; or
(b) an authorised person under Part 3;
non-government issuing agency, in relation to an authority,
means a person, body or entity (other than a government issuing agency) named in
the authority that issues evidence of identity;
officer of an agency includes a person employed or engaged in
the agency;
operative means—
(a) an interstate operative; or
(b) a local operative,
as the case requires;
participating jurisdiction means a jurisdiction in which a
corresponding law is in force;
party to proceedings means—
(a) in relation to criminal proceedings—the prosecutor and each
accused person;
(b) in relation to civil proceedings—each person who is a party to
the proceedings;
(c) in relation to any other proceedings—each person who may appear
or give evidence in the proceedings;
presiding officer, in relation to proceedings, means the
person constituting the court, or presiding over the court, in the
proceedings;
proceedings means any criminal, civil or other proceeding or
inquiry, reference or examination in which, by law or consent of parties,
evidence is or may be given, and includes an arbitration;
professional misconduct means misconduct or a breach of
discipline—
(a) under the Police Act 1998; or
(b) under a law of another jurisdiction that corresponds to the Police
Act 1998; or
(c) under a law of the Commonwealth that governs the conduct of members of
staff of the Australian Crime Commission,
but does not mean misconduct or a breach of discipline—
(d) that constitutes minor misconduct, or is the subject of an informal
inquiry only, under the Police Act 1998; or
(e) that constitutes minor misconduct (however referred to), or is the
subject of an informal inquiry only, under any of the laws referred to in
paragraph (b) or (c);
repealed Act means the Criminal Law (Undercover
Operations) Act 1995 repealed under Schedule 1;
SA Police means South Australia Police;
serious criminal behaviour means behaviour involving the
commission of—
(a) an indictable offence; or
(b) an offence against the Controlled Substances Act 1984;
or
(c) an offence against section 52, 53, 72 or 74 of the Fisheries
Management Act 2007; or
(d) an offence against section 63 or 75 of the Lottery and Gaming
Act 1936; or
(e) an offence against section 47(1), (2) or (4), 48(1), 48A(1), 51(1) or
60(1) of the National Parks and Wildlife Act 1972;
supervisor of an authorised civilian means the law
enforcement officer who supervises, or is to supervise, the acquisition or use
of an assumed identity by the authorised civilian;
undercover operations means operations (which may include
conduct that is apart from this Act illegal) of which the intended purpose is to
provide persons engaging or about to engage in serious criminal behaviour an
opportunity to—
(a) manifest that behaviour; or
(b) provide other evidence of that behaviour;
use an assumed identity, includes representing (whether
expressly or impliedly, or by saying or doing something) the identity to be real
when it is not;
witness identity protection certificate means a certificate
given under section 31 in respect of a local operative in relation to
proceedings.
(2) For the purposes of this Act, a person is reckless about whether or
not an act has been done if—
(a) the person is aware of a substantial risk that the act has been done;
and
(b) having regard to the circumstances known to the person, it is
unjustifiable to take the risk.
4—Approval of
undercover operations
(1) A senior police officer may approve undercover operations for the
purpose of gathering evidence of serious criminal behaviour.
(2) An approval may not be given unless the senior police
officer—
(a) suspects, on reasonable grounds, that persons (whose identity
may—but need not—be known to the officer) have engaged, are engaging
or are about to engage in serious criminal behaviour of the kind to which the
proposed undercover operations relate; and
(b) is satisfied on reasonable grounds that the ambit of the proposed
undercover operations is not more extensive than could reasonably be justified
in view of the nature and extent of the suspected serious criminal behaviour;
and
(c) is satisfied on reasonable grounds that the means are proportionate to
the end; that is, that the proposed undercover operations are justified by the
social harm of the serious criminal behaviour against which they are directed;
and
(d) is satisfied on reasonable grounds that the undercover operations are
properly designed to provide persons who have engaged, or are engaging or about
to engage, in serious criminal behaviour an opportunity—
(i) to manifest that behaviour; or
(ii) to provide other evidence of that behaviour,
without undue risk that persons without a predisposition to serious
criminal behaviour will be encouraged into serious criminal behaviour that they
would otherwise have avoided.
(3) Before giving approval, the senior police officer must consider
whether approval for similar operations has previously been sought, and, if
sought and refused, the reasons for that refusal.
(4) The approval must—
(a) be in writing; and
(b) be signed by the senior police officer giving the approval;
and
(c) specify—
(i) the date and time of the signing, and the time from which the approval
takes effect (which may be contemporaneous with or later than the time of
signing but cannot be earlier); and
(ii) the persons who are authorised to participate in the operations;
and
(iii) the nature of the conduct in which the participants are authorised
to engage; and
(iv) a period (not exceeding 3 months) for which the approval is
given.
(5) A senior police officer may renew, from time to time, an approval for
1 or more further periods.
(6) A senior police officer must, within 14 days after giving or renewing
an approval, cause a copy of the instrument of approval or renewal to be given
to the Attorney-General.
(7) In this section—
senior police officer means a police officer of or above the
rank of Superintendent.
5—Legal
immunity of persons taking part in approved undercover
operations
(1) Despite any other law, an authorised participant in approved
undercover operations incurs no criminal liability by taking part in undercover
operations in accordance with the terms of the approval.
(2) This section operates both prospectively and
retrospectively.
Division
1—Authority to acquire or use assumed identity
(1) A law enforcement officer of a law enforcement agency may apply to the
chief officer of the law enforcement agency for an authority for the law
enforcement officer, or another person, to do either or both of the
following:
(a) acquire an assumed identity;
(b) use an assumed identity.
(2) A separate application must be made in respect of each assumed
identity to be acquired or used.
(3) An application—
(a) must be in writing in the form approved by the chief officer;
and
(b) must contain the following information:
(i) the name of the applicant;
(ii) the name of the person to be authorised to acquire or use an assumed
identity (if not the applicant);
(iii) if the person to be authorised is not a law enforcement
officer—the name and rank or position of the person proposed to be
appointed as supervisor and an explanation of why it is necessary for a person
who is not a law enforcement officer to acquire or use the assumed
identity;
(iv) details of the proposed assumed identity;
(v) reasons for the need to acquire or use an assumed identity;
(vi) to the extent known—details of the investigation or
intelligence gathering exercise in which the assumed identity will be
used;
(vii) details of the issuing agencies (if any) and the types of evidence
to be issued by them;
(viii) details of any application to be made for an order under
section 12 in respect of the assumed identity.
(4) An applicant must provide the chief officer with any other information
required by the chief officer for the purposes of determining the
application.
7—Determination
of applications
(1) The chief officer of a law enforcement agency may, on application
under section 6 for an authority, grant the authority subject to such
conditions as the chief officer thinks fit.
(2) The chief officer may not grant any such authority unless satisfied on
reasonable grounds—
(a) that the assumed identity is necessary for the purposes of an
investigation or intelligence gathering in relation to criminal activity;
and
(b) that the risk of abuse of the assumed identity by the authorised
person is minimal; and
(c) if the application is for authorisation of an assumed identity for a
person who is not a law enforcement officer—that it would be impossible or
impracticable in the circumstances to authorise the acquisition or use (or both)
of the assumed identity by a law enforcement officer for the purpose
sought.
(3) If an authority is granted in respect of an authorised civilian, the
chief officer must appoint a law enforcement officer of the agency to supervise
the acquisition or use (or both) of the assumed identity by the authorised
civilian.
(4) A law enforcement officer appointed as supervisor under
subsection (3) must be—
(a) in the case of SA Police—of or above the rank of
Sergeant;
(b) in the case of the Australian Crime Commission—of or above the
rank of Senior Investigator.
(5) An authority may also authorise any 1 or more of the
following:
(a) an application for an order for an entry in a register of births,
deaths or marriages under section 12 or a corresponding law;
(b) a request under section 14 or 23;
(c) the use of an assumed identity in a participating
jurisdiction.
(6) A separate authority is required for each assumed identity.
An authority must—
(a) be in writing in the form approved by the chief officer of the law
enforcement agency granting the authority; and
(b) be signed by the person granting the authority; and
(c) specify—
(i) the name of the person granting the authority;
(ii) the date on which the authority comes into effect;
(iii) details of the assumed identity authorised;
(iv) details of evidence of the assumed identity that may be acquired
under the authority;
(v) the conditions (if any) to which the authority is subject;
(vi) the reason why the authority is granted;
(vii) if the authority relates to an authorised officer—the name of
the authorised officer;
(viii) if the authority relates to an authorised civilian—
(A) the name of the authorised civilian; and
(B) the name of his or her supervisor under the authority; and
(C) the period (which may not exceed 3 months) for which the authority
will remain in force;
(ix) each issuing agency to which a request may be made under
section 14 or 23;
(x) whether it authorises an application for an order for an entry in a
register of births, deaths or marriages under section 12 or a corresponding
law;
(xi) each participating jurisdiction in which the assumed identity may be
used.
(1) An authority for an authorised officer remains in force until
cancelled.
(2) An authority for an authorised civilian remains in force until the end
of the period specified in the authority (which may not exceed 3 months),
unless the authority is cancelled sooner.
10—Variation
or cancellation of authority
(1) The chief officer of a law enforcement agency who grants an
authority—
(a) may vary or cancel the authority at any time; and
(b) must cancel the authority if satisfied (on a review or otherwise) that
any of the grounds for the granting of the authority no longer exist.
(2) The chief officer must give written notice of the variation or
cancellation to—
(a) the authorised person to whom it relates; and
(b) if the authorised person is an authorised civilian—the
authorised person's supervisor.
(3) The notice must specify the reason why the authority is varied or
cancelled.
(4) The variation or cancellation takes effect—
(a) on the day the written notice is given to the authorised person;
or
(b) if a later date is specified in the notice—on that
day.
(1) The chief officer of a law enforcement agency must, at least once in
every 12 month period, review each authority granted under this
Part.
(2) The purpose of a review is to determine whether the grounds for the
granting of the authority still exist.
(3) If on a review the chief officer is satisfied—
(a) that the grounds for the granting of the authority still
exist—the chief officer must record his or her opinion and the reasons for
it in writing;
(b) that any of the grounds for the granting of the authority no longer
exist—the chief officer must cancel the authority under
section 10.
12—Making
entries in register of births, deaths and marriages
(1) The Supreme Court may order the Registrar of Births, Deaths and
Marriages to make an entry in the Register under the Births, Deaths and
Marriages Registration Act 1996 in relation to the acquisition of an
assumed identity under an authority or corresponding authority.
(2) The Court may only make an order under this section—
(a) on application by—
(i) the chief officer of a law enforcement agency; or
(ii) the chief officer of a law enforcement agency under a corresponding
law; and
(b) if satisfied that the order is justified having regard to the nature
of the activities undertaken or to be undertaken by the officer or person under
the authority or corresponding authority.
(3) An application for an order under this section must be heard in closed
court.
(4) The Registrar of Births, Deaths and Marriages must give effect to an
order under this section—
(a) within the period specified in the order; or
(b) if no period is specified in the order—within 28 days after the
day on which the order is made.
13—Cancellation of
authority affecting entry in register of births, deaths and
marriages
(1) This section applies if—
(a) the chief officer of a law enforcement agency cancels an authority for
an assumed identity; and
(b) there is an entry in relation to that identity—
(i) in the Register under the Births, Deaths and Marriages Registration
Act 1996 as a consequence of an order under section 12;
or
(ii) in a register of births, deaths or marriages in a participating
jurisdiction as a consequence of an order under a corresponding law of the
jurisdiction.
(2) If subsection (1)(b)(i) applies—
(a) the chief officer must, within 28 days after the day on which the
authority is cancelled, apply to the Supreme Court for an order that the
Registrar of Births, Deaths and Marriages cancel the entry; and
(b) the Registrar of Births, Deaths and Marriages must give effect to the
order within 28 days after the day on which the order is made.
(3) An application under subsection (2)(a) must be heard in closed
court.
(4) If subsection (1)(b)(ii) applies, the chief officer must apply
for an order under the corresponding law to cancel the entry within 28 days
after the day on which the authority is cancelled.
Division
2—Evidence of assumed identity
14—Request
for evidence of assumed identity
(1) Subject to this section, the chief officer of a law enforcement agency
who grants an authority under this Part may request the chief officer of an
issuing agency specified in the authority—
(a) to produce evidence of an assumed identity in accordance with the
authority; and
(b) to provide the authorised person named in the authority with evidence
of the assumed identity.
(2) A request under this section must specify a reasonable period for
compliance with the request.
(3) The chief officer of—
(a) a government issuing agency must comply with a request under this
section within the period specified in the request;
(b) a non-government issuing agency may comply with a request under this
section.
(4) A request cannot be made under this section for an entry in the
Register under the Births, Deaths and Marriages Registration
Act 1996.
(5) In this section—
evidence means evidence similar to that ordinarily produced
or given by the issuing authority.
15—Cancellation
of evidence of assumed identity
(1) The chief officer of an issuing agency must cancel evidence of an
assumed identity produced by the agency if directed in writing to do so by the
chief officer for the time being of the law enforcement agency that requested
the evidence be produced.
(2) In this section—
cancel includes delete or alter an entry in a record of
information.
16—Legal
immunity of officers of issuing agencies
The chief officer or any other officer of an issuing agency (whether
government or non-government) who does something that, apart from this section,
would be an offence, is not criminally responsible for the offence if the thing
is done to comply with a request under this Division.
17—Indemnity for
issuing agencies and officers
Where the chief officer of a law enforcement agency makes a request or
gives a direction under this Division to the chief officer of an issuing agency
(whether government or non-government), the law enforcement agency must
indemnify the issuing agency, or an officer of the agency, for any liability
incurred by the agency or officer (including reasonable costs)
if—
(a) the liability is incurred because of something done by the agency or
officer to comply with the request or direction in the course of duty;
and
(b) the requirements (if any) prescribed by the regulations have been
met.
Division 3—Effect
of authority
18—Assumed
identity may be acquired and used
(1) An authorised officer may acquire or use (or acquire and use) an
assumed identity if the acquisition or use (or acquisition and use)
is—
(a) in accordance with an authority; and
(b) in the course of duty.
(2) An authorised civilian may acquire or use (or acquire and use) an
assumed identity if the acquisition or use (or acquisition and use) is in
accordance with—
(a) an authority; and
(b) any direction by the person's supervisor under the
authority.
19—Legal
immunity of authorised persons acting under authority
Where an authorised person does something (whether in this State or
elsewhere) that, apart from this section, would be an offence, the officer or
person is not criminally responsible for the offence if—
(a) the act is done in the course of acquiring or using an assumed
identity in accordance with an authority; and
(b) the act is done—
(i) in the case of an authorised officer—in the course of his or her
duty; or
(ii) in the case of an authorised civilian—in accordance with any
direction by his or her supervisor under the authority; and
(c) doing the act would not be an offence if the assumed identity were the
person's real identity.
20—Indemnity
for authorised persons
Where the chief officer of a law enforcement agency grants an authority,
the law enforcement agency must indemnify the authorised person under the
authority for any liability incurred by the person (including reasonable costs)
because of something done by the person (whether in this State or elsewhere)
if—
(a) the act is done in the course of acquiring or using an assumed
identity in accordance with the authority; and
(b) the act is done—
(i) in the case of an authorised officer—in the course of his or her
duty; or
(ii) in the case of an authorised civilian—in accordance with any
direction by his or her supervisor under the authority; and
(c) the requirements (if any) prescribed by the regulations have been
met.
(1) Sections 19 and 20 do not apply to anything done by an authorised
person if—
(a) a particular qualification is needed to do the thing; and
(b) the person does not have that qualification.
(2) This section applies whether or not the person has acquired as
evidence of an assumed identity a document indicating that he or she has that
qualification.
22—Effect
of being unaware of variation or cancellation of authority
(1) If an authority has been varied in a way that limits its scope, this
Division continues to apply to the authorised person to whom it relates as if it
had not been so varied for as long as the person—
(a) is unaware of the variation; and
(b) is not reckless about the existence of the variation.
(2) If an authority has been cancelled, this Division continues to apply
to the authorised person to whom it related as if it had not been cancelled for
as long as the person—
(a) is unaware of the cancellation; and
(b) is not reckless about the existence of the cancellation.
23—Requests
to participating jurisdiction for evidence of assumed
identity
(1) The chief officer of a law enforcement agency granting an
authority may, if the authority authorises a request under this section, request
the chief officer of an issuing agency of a participating jurisdiction specified
in the authority—
(a) to produce evidence of the assumed identity in accordance with the
authority; and
(b) to give evidence of the assumed identity to the authorised person
named in the authority.
(2) If the chief officer of a law enforcement agency makes a request to
the chief officer of an issuing agency of a participating jurisdiction under
this section, the law enforcement agency must indemnify the issuing agency, and
any officer of the issuing agency, for any liability incurred by the agency or
officer (including reasonable costs) if—
(a) the liability is incurred because of something done (whether in this
State or elsewhere) by the agency or officer to comply with the request in the
course of duty; and
(b) the requirements (if any) prescribed by the regulations have been
met.
24—Requests
from participating jurisdiction for evidence of assumed
identity
(1) This section applies if—
(a) an authority under a corresponding law authorises a
request—
(i) to produce evidence of an assumed identity in this State;
and
(ii) to provide evidence of the assumed identity to the authorised person
named in the authority; and
(b) the request is made to the chief officer of an issuing agency in this
State; and
(c) the request specifies a reasonable period for compliance with the
request.
(2) The chief officer of an issuing agency—
(a) in the case of a government issuing agency—must comply with any
such request within the period specified in the request;
(b) in the case of a non-government issuing agency—may comply with
any such request.
(3) The chief officer of an issuing agency that produces evidence of an
assumed identity as the result of a request under this section must cancel the
evidence if directed in writing to do so by the chief officer for the time being
of the law enforcement agency that requested the evidence be produced.
(4) In this section—
cancel includes delete or alter an entry in a record of
information.
Division
5—Compliance and monitoring
(1) An authorised officer is guilty of an offence if—
(a) he or she intentionally, knowingly or recklessly acquires evidence of,
or uses, an assumed identity covered by his or her authority; and
(b) he or she knows that, or is reckless as to whether, the acquisition or
use is not—
(i) in accordance with his or her authority; or
(ii) in the course of duty.
Maximum penalty: Imprisonment for 2 years.
(2) An authorised civilian is guilty of an offence if—
(a) he or she intentionally, knowingly or recklessly acquires evidence of,
or uses, an assumed identity covered by his or her authority; and
(b) he or she knows that, or is reckless as to whether, the acquisition or
use is not in accordance with—
(i) his or her authority; or
(ii) the directions of his or her supervisor under the
authority.
Maximum penalty: Imprisonment for 2 years.
26—Disclosing
information about assumed identity
(1) A person is guilty of an offence if—
(a) the person intentionally, knowingly or recklessly discloses
information that the person knows or is reckless as to whether it reveals, or is
likely to reveal, that an assumed identity acquired or used by another person is
not the other person's real identity; and
(b) the person knows, or is reckless as to whether, the disclosure is not
made—
(i) in connection with the administration or execution of this Act or a
corresponding law; or
(ii) for the purposes of proceedings arising out of or otherwise related
to this Act or a corresponding law or of a report of any such proceedings;
or
(iii) in accordance with any requirement imposed by law.
Maximum penalty: Imprisonment for 2 years.
(2) A person is guilty of an offence against this subsection if the person
commits an offence against subsection (1) in circumstances in
which—
(a) the person intends to endanger the health or safety of another or
prejudice the effective conduct of an investigation or intelligence gathering in
relation to criminal activity; or
(b) the person knows, or is reckless as to whether, the disclosure of the
information—
(i) endangers or will endanger the health or safety of another;
or
(ii) prejudices or will prejudice the effective conduct of an
investigation or intelligence gathering in relation to criminal
activity.
Maximum penalty: Imprisonment for 10 years.
(1) The chief officer of a law enforcement agency must cause appropriate
records to be kept about the operation of this Part in respect of the
agency.
(2) For the purposes of subsection (1), the records of the agency
must include the following information in respect of each authority granted,
varied or cancelled under this Part:
(a) the date on which the authority was granted, varied or cancelled and
the name of the person who granted, varied or cancelled the authority;
(b) the name of the authorised person under the authority, together with
details of the assumed identity to which the authority applies;
(c) details of any request made to an issuing agency under section 14
in respect of the authority;
(d) the general nature of the duties undertaken by the authorised person
under the assumed identity;
(e) general details of relevant financial transactions entered into using
the assumed identity;
(f) details of the annual reviews of the authority.
(1) The chief officer of a law enforcement agency must arrange for the
records kept for each authority in respect of the agency to be
audited—
(a) at least once every 6 months while the authority is in force;
and
(b) at least once in the 6 months following the cancellation or expiry of
the authority.
(2) An audit must be conducted by a person appointed by the chief
officer.
(3) The person appointed to conduct an audit—
(a) may but need not be an officer of the law enforcement
agency;
(b) must not be a person—
(i) who granted, varied or cancelled any of the authorities to which the
records relate; or
(ii) who is or was an authorised person under any of the authorities to
which the records relate.
(4) The results of an audit are to be reported to the chief
officer.
(1) Despite any other Act or law to the contrary, the functions of a chief
officer of a law enforcement agency under this Part may not be delegated to any
other person except as provided by this section.
(2) A chief officer of a law enforcement agency may delegate to a senior
officer of the agency any of the chief officer's functions under this
Part.
(3) No more than 4 delegations may be in force under this section at any 1
time in respect of any 1 law enforcement agency.
(4) In this section—
senior officer means—
(a) in relation to SA Police—a police officer of or above the rank
of Superintendent;
(b) in relation to the Australian Crime Commission—
(i) the Director National Operations; or
(ii) a Director; or
(iii) the General Manager National Operations; or
(iv) a member of staff of the Australian Crime Commission who is an SES
employee or acting SES employee (within the meaning of the Australian Crime
Commission Act 2002 of the Commonwealth) and who holds a position that is
prescribed by the regulations for the purposes of this definition.
Part
4—Witness identity protection
For the purposes of this Part—
(a) a charge against a person for an offence is outstanding
until the charge is finally dealt with in any of the following ways:
(i) the charge is withdrawn;
(ii) the charge is dismissed by a court;
(iii) the person is discharged by a court following a preliminary
examination;
(iv) the person is acquitted or found guilty of the offence;
(v) the person is declared under Part 8A of the Criminal Law
Consolidation Act 1935 to be liable to supervision;
(vi) in any other case—when proceedings relating to the charge are
otherwise concluded or terminated; and
(b) anything permitted to be done by a party to proceedings may be done by
the party's lawyer; and
(c) any requirement to give something to a party to proceedings is
satisfied by giving the thing to the party's lawyer.
Division 2—Witness
identity protection certificates for local operatives
31—Chief
officer may give witness identity protection certificate to local
operative
(1) The chief officer of a law enforcement agency may give a certificate
in respect of a local operative in relation to proceedings (a witness
identity protection certificate) if—
(a) the local operative is, or may be, required to give evidence in the
proceedings; and
(b) the chief officer is satisfied on reasonable grounds that the
disclosure in the proceedings of the local operative's identity or where the
local operative lives is likely—
(i) to endanger the safety of the local operative or another person;
or
(ii) to prejudice an investigation.
(2) The chief officer may not give a witness identity protection
certificate in respect of the local operative until the chief officer has
received the following information from the local operative verified by
statutory declaration:
(a) whether he or she has ever been convicted or found guilty of an
offence (in this State or elsewhere) and, if so, particulars of each
offence;
(b) whether any charges against the local operative for an offence are
pending or outstanding (in this State or elsewhere) and, if so, particulars of
each charge;
(c) if the local operative is or was a law enforcement
officer—
(i) whether he or she has ever been found guilty of professional
misconduct and, if so, particulars of each finding; and
(ii) whether to his or her knowledge any allegations of professional
misconduct against him or her are outstanding and, if so, particulars of each
allegation;
(d) whether to the local operative's knowledge a court (in this State or
elsewhere) has ever made any adverse comment about his or her credibility and,
if so, particulars of the comment;
(e) whether the local operative has ever made a false representation when
the truth was required and, if so, particulars of the representation;
(f) particulars of anything else known to the local operative that may be
relevant to his or her credibility.
(3) A person cannot be compelled to disclose or produce a statutory
declaration made under this section in any proceedings.
(4) However, subsection (3) does not apply to—
(a) proceedings for perjury or otherwise in respect of the falsity of the
statutory declaration; or
(b) proceedings of a disciplinary nature against a law enforcement
officer; or
(c) investigations or inquiries by a person or body in any jurisdiction
having jurisdiction to investigate or inquire into the conduct of a law
enforcement officer.
(5) The chief officer must make all reasonable enquiries to enable him or
her to ascertain the information required to be included in the certificate
under this Part.
32—Protection of
decision to give witness identity protection certificate
(1) A decision to give a witness identity protection
certificate—
(a) is final; and
(b) cannot be appealed against, reviewed, called into question, quashed or
invalidated in any court.
(2) Subsection (1) does not prevent a decision to give a witness identity
protection certificate from being called into question in the course of any
proceedings of a disciplinary nature against the person who made the
decision.
33—Form
of witness identity protection certificate
(1) The chief officer of a law enforcement agency must ensure that a
witness identity protection certificate given in respect of a local operative in
relation to proceedings includes the following information:
(a) the name of the law enforcement agency of which he or she is the chief
officer;
(b) the date on which the certificate is given;
(c) the grounds for giving the certificate;
(d) if the local operative—
(i) is known to a party to the proceedings or a party's lawyer by a name
other than the local operative's real name—that name (the assumed
name); or
(ii) is not known to any party to the proceedings or any party's lawyer by
a name—the local operative's court name for the proceedings;
(e) the period during which the local operative was involved in the
investigation to which the proceedings relate;
(f) whether the local operative has ever been convicted or found guilty of
an offence (in this State or elsewhere) and, if so, particulars of each
offence;
(g) whether any charges against the local operative for an offence are
pending or outstanding (in this State or elsewhere) and, if so, particulars of
each charge;
(h) if the local operative is or was a law enforcement
officer—
(i) whether the local operative has ever been found guilty of professional
misconduct and, if so, particulars of each finding; and
(ii) whether to the local operative's knowledge any allegations of
professional misconduct against him or her are outstanding and, if so,
particulars of each allegation;
(i) whether, to the knowledge of the person giving the certificate, a
court (in this State or elsewhere) has ever made any adverse comment about the
local operative's credibility and, if so, particulars of the comment;
(j) whether, to the knowledge of the person giving the certificate, the
local operative has ever made a false representation when the truth was required
and, if so, particulars of the representation;
(k) if there is anything else known to the person giving the certificate
that may be relevant to the local operative's credibility, particulars of the
thing.
(2) A witness identity protection certificate must not contain information
that may allow the local operative's identity, or where the local operative
lives, to be revealed.
34—Cancellation
of witness identity protection certificate
(1) If, in relation to proceedings, the chief officer of a law enforcement
agency considers that it is no longer necessary or appropriate to prevent the
disclosure of the identity of a local operative or where he or she lives, the
chief officer may cancel a witness identity protection certificate in respect of
the local operative.
(2) If a witness identity protection certificate is cancelled after it has
been filed in court under section 37, the chief officer must immediately
give written notice to the court and each party to the proceedings that the
certificate has been cancelled.
35—Permission
to give information disclosing operative's identity etc
(1) Where the chief officer of a law enforcement agency gives a witness
identity protection certificate in respect of a local operative in relation to
proceedings, the chief officer may, if he or she considers it necessary or
appropriate for information that discloses, or may lead to the disclosure of,
the local operative's identity or where he or she lives to be given otherwise
than in the proceedings, give written permission to a person to give the
information.
(2) The permission—
(a) must—
(i) identify the person who may give the information; and
(ii) identify the person to whom the information may be given;
and
(iii) specify the information that may be given; and
(b) may specify how the information may be given.
Division 3—Use of
witness identity protection certificates in proceedings
36—Application and
interpretation of Division
(1) This Division applies to proceedings in this State in which an
operative is, or may be, required to give evidence obtained as an
operative.
(2) To remove any doubt, this Division does not affect the operation of
the common law in relation to the protection of the identity of a person who is
not an operative who gives or intends to give evidence in proceedings in this
State.
(3) In this Division—
witness identity protection certificate
means—
(a) a witness identity protection certificate given in respect of a local
operative; or
(b) an interstate witness identity protection certificate,
as the case requires.
37—Filing
and effect of filing of witness identity protection certificate in
court
(1) A witness identity protection certificate for an operative in relation
to proceedings in this State must be filed in court before the operative gives
evidence in the proceedings.
(2) A person who files a witness identity protection certificate in court
under this section must serve a copy of the certificate—
(a) on each party to the proceedings at least 14 days (or such shorter
period as may be agreed by the parties) before the day on which the operative is
to give evidence; and
(b) by order of the court—on any other person specified in the
order.
(3) If—
(a) a witness identity protection certificate given in respect of an
operative is filed under this section; and
(b) either—
(i) a copy of the certificate is served in accordance with this section;
or
(ii) the court gives permission for this section to apply despite
non-compliance with this section,
then—
(c) the operative may give evidence in the proceedings under the assumed
name, or court name, specified in the certificate; and
(d) subject to this Division—
(i) a question must not be asked of a witness (including the operative)
that may lead to the disclosure of the operative's identity or where the
operative lives; and
(ii) a witness (including the operative) cannot be required to (and must
not) answer a question, give evidence or provide information that discloses, or
may lead to the disclosure of, the operative's identity or where the operative
lives; and
(iii) a person involved in the proceedings must not make a statement that
discloses, or may lead to the disclosure of, the operative's identity or where
the operative lives.
(4) The presiding officer in proceedings in a court in which a witness
identity protection certificate in respect of an operative has been filed may
require the operative—
(a) to disclose his or her true identity to the presiding officer;
and
(b) to provide the presiding officer with photographic evidence of that
identity.
(5) For the purposes of this section, a person involved in
proceedings includes—
(a) the court; and
(b) a party to the proceedings; and
(c) a person given permission to be heard or make submissions in the
proceedings; and
(d) a lawyer representing a person referred to in paragraph (b) or
(c) or a lawyer assisting the court in the proceedings; and
(e) any other officer of the court or person assisting the court in the
proceedings; and
(f) a person acting in the execution of any process or the enforcement of
any order in the proceedings.
38—Orders
to protect operative's identity etc
(1) The court in which a witness identity protection certificate is filed
may make any order it considers necessary or desirable to protect the identity
of the operative in respect of whom the certificate has been filed or to prevent
the disclosure of where the operative lives.
(2) A person is guilty of an offence if—
(a) the person knows, or is reckless as to whether, an order has been made
under this section; and
(b) the person intentionally, knowingly or recklessly contravenes the
order.
Maximum penalty: Imprisonment for 2 years.
(3) Subsection (2) does not limit the court's power to punish for
contempt.
Subject to section 40(4)(b), if an operative in respect of whom a
witness identity protection certificate has been filed in court in relation to
proceedings gives evidence in the proceedings, the court must (unless it
considers it inappropriate) direct the jury not to give the operative's evidence
any more or less weight, or draw any adverse inferences against the defendant or
another party to the proceedings because the certificate has been filed or the
court has made an order under section 38.
40—Application
for disclosure of operative's identity etc in proceedings
(1) If a witness identity protection certificate in respect of an
operative has been filed in a court in relation to proceedings, a party to the
proceedings or a lawyer assisting the court in the proceedings may, at any time
after the certificate has been filed, apply to the court—
(a) for permission—
(i) to ask a question of a witness (including the operative) that may lead
to the disclosure of the operative's identity or where the operative lives;
or
(ii) for a person involved in the proceedings to make a statement that
discloses, or may lead to the disclosure of, the operative's identity or where
the operative lives; or
(b) for an order requiring a witness (including the operative) to answer a
question, give evidence or provide information that discloses, or may lead to
the disclosure of, the operative's identity or where the operative
lives.
(2) An application under this section must be heard in the absence of the
jury (if any).
(3) The court may give permission or make an order under this section if
(and only if) the court is satisfied that—
(a) there is evidence that, if accepted, would substantially call into
question the operative's credibility; and
(b) it would be impractical to test properly the credibility of the
operative without risking the disclosure of, or disclosing, the operative's
identity or where the operative lives; and
(c) it is in the interests of justice that the operative's credibility be
tested.
(4) Each party to the proceedings must be informed of any proposal by the
court to give permission or make an order under this section and, if the
proposed permission or order relates to a witness who is the operative in
respect of whom the witness identity protection certificate has been
filed—
(a) if the witness has not yet given evidence in the proceedings—the
party calling the witness must be given the opportunity to withdraw the witness
(in which case, the permission or order relating to that witness
lapses);
(b) if the witness has already given evidence in the proceedings—the
court may, and if a party so requests must, warn the jury of the need for
caution in determining whether to accept the evidence and the weight to be given
to it.
(5) Unless the court considers that the interests of justice require
otherwise, the court must be closed—
(a) when an application is made under this section; and
(b) if permission is given or an order made in response to the
application—when the evidence is given or information provided that
discloses, or may lead to the disclosure of, the operative's identity or where
the operative lives.
(6) The court must make an order suppressing the publication of anything
said—
(a) when an application is made under this section; and
(b) if permission is given or an order made in response to the
application—when the evidence is given or information provided that
discloses, or may lead to the disclosure of, the operative's identity or where
the operative lives.
(7) The court may, under this section, make any other order it considers
appropriate to protect the operative's identity or to prevent the disclosure of
where the operative lives.
(8) Nothing in this section prevents the taking of a transcript of court
proceedings but the court may make an order for how the transcript is to be
dealt with, including an order suppressing its publication.
(9) A person is guilty of an offence if—
(a) the person knows, or is reckless as to whether, an order has been made
under this section; and
(b) the person intentionally, knowingly or recklessly contravenes the
order.
Maximum penalty: Imprisonment for 2 years.
(10) Subsection (9) does not limit the court's power to punish for
contempt.
(1) A person commits an offence if—
(a) a witness identity protection certificate in respect of an operative
has been given; and
(b) the person knows, or is reckless as to whether, the certificate has
been given; and
(c) the person intentionally, knowingly or recklessly does something (the
disclosure action) that discloses, or is likely to lead to the
disclosure of, the operative's identity or where the operative lives;
and
(d) the person knows, or is reckless as to whether, the certificate has
not been cancelled (whether under this Act or a corresponding law) before the
person does the disclosure action; and
(e) the person knows, or is reckless as to whether—
(i) the disclosure action is not permitted under this Act; or
(ii) the disclosure action is not authorised under a corresponding
law.
Maximum penalty: Imprisonment for 2 years.
(2) A person is guilty of an offence against this subsection if the person
commits an offence against subsection (1) in circumstances in which the
person—
(a) intends to endanger the health or safety of another or prejudice the
effective conduct of an investigation; or
(b) knows, or is reckless as to whether, the disclosure
action—
(i) endangers or will endanger the health or safety of another;
or
(ii) prejudices or will prejudice the effective conduct of an
investigation.
Maximum penalty: Imprisonment for 10 years.
(1) Despite any other Act or law to the contrary, the functions of a chief
officer of a law enforcement agency under this Part may not be delegated to any
other person except as provided by this Division.
(2) A chief officer of a law enforcement agency may delegate any of the
chief officer's functions under this Part (except this power of delegation) to a
senior officer of the agency.
(3) In this Division—
senior officer means—
(a) in relation to SA Police—a Deputy Commissioner;
(b) in relation to the Australian Crime Commission—
(i) the Director National Operations; or
(ii) the General Manager National Operations; or
(iii) a member of staff of the Australian Crime Commission who is an SES
employee or acting SES employee (within the meaning of the Australian Crime
Commission Act 2002 of the Commonwealth) and who holds a position that is
prescribed by the regulations for the purposes of this definition.
Part 5—Application
of Act to approvals, authorities or certificates under corresponding
laws
43—Application of
Act to approvals under corresponding laws
The following provision applies to anything done in this State in relation
to a corresponding approval as if it were an approval given under Part
2:
section 5 (Legal immunity of persons taking part in approved
undercover operations).
44—Application of
Act to authorities under corresponding laws
The following provisions apply to anything done in this State in relation
to a corresponding authority as if it were an authority granted under Part
3:
(a) section 16 (Legal immunity of officers of issuing
agencies);
(b) section 18 (Assumed identity may be acquired and used);
(c) section 19 (Legal immunity of authorised persons acting under
authority);
(d) section 21 (Particular qualifications);
(e) section 22 (Effect of being unaware of variation or cancellation
of authority);
(f) section 25 (Misuse of assumed identity);
(g) section 26 (Disclosing information about assumed
identity).
45—Application of
Act to witness identity protection certificates under corresponding
laws
The following provisions apply (with any necessary modifications) to a
witness identity protection certificate given under a corresponding law as if it
were a witness identity protection certificate given under Part 4:
(a) section 37 (Filing and effect of filing of witness identity
protection certificate in court);
(b) section 38 (Orders to protect operative's identity
etc);
(c) section 39 (Directions to jury);
(d) section 41 (Offences).
46—State
Records Act 1997 and Freedom of Information Act 1991 not to
apply
(1) The State Records Act 1997 does not apply to information
obtained under this Act.
(2) Information obtained under this Act is not liable to disclosure under
the Freedom of Information Act 1991.
(1) As soon as practicable after 30 June in each year, the chief officer
of a law enforcement agency must submit a report to the Minister that includes
the following information:
(a) in relation to Part 2—
(i) the classes of offence for which approvals were given or renewed
during the period of 12 months ending on the preceding 30 June;
and
(ii) the number of approvals given or renewed during that period for
offences of each class;
(b) in relation to Part 3—
(i) the number of authorities granted during the period of 12 months
ending on the preceding 30 June; and
(ii) a general description of the activities undertaken by authorised
persons when using assumed identities under this Act during that period;
and
(iii) the number of applications for authorities that were refused during
that period; and
(iv) a statement as to whether or not any fraud or other unlawful activity
was identified by an audit under that Part during that period; and
(v) any other information relating to authorities and assumed identities
that the Minister considers appropriate;
(c) in relation to Part 4—
(i) the number of witness identity protection certificates given during
the period of 12 months ending on the preceding 30 June; and
(ii) the basis on which the chief officer was satisfied about the matters
mentioned in section 31(1)(b) for each certificate; and
(iii) if permission was given or an order made under a provision of a
corresponding law that corresponds to section 40 in interstate proceedings
in which a witness identity protection certificate in respect of a local
operative of the agency was filed—details of the interstate proceedings
that relate to the permission or order; and
(iv) if a witness identity protection certificate was cancelled—the
reason why the certificate was cancelled; and
(v) if permission was given under section 35—the reason why the
permission was given; and
(vi) any other information relating to witness identity protection
certificates that the Minister considers appropriate;
(d) any other information relating to the administration of this Act that
the Minister considers appropriate.
(2) The report relating to Part 4 must not include information that
discloses, or may lead to the disclosure of, an operative's identity, or where
the operative lives, unless the witness identity protection certificate in
respect of the operative has been cancelled.
(3) The chief officer must advise the Minister of any information in the
report that should, in the chief officer's opinion, be excluded from the report
before the report is laid before Parliament because the information, if made
public, could reasonably be expected to—
(a) endanger a person's safety; or
(b) prejudice an investigation or prosecution; or
(c) compromise a law enforcement agency's operational activities or
methodologies.
(4) The Minister must—
(a) exclude information from the report if satisfied on the advice of the
chief officer of any of the grounds set out in subsection (3);
and
(b) on or before 30 September in each year—cause a copy of the
report to be laid before each House of Parliament.
(1) The Governor may make such regulations as are necessary or expedient
for the purposes of this Act.
(2) Without limiting the generality of subsection (1), the
regulations may—
(a) be of general or limited application;
(b) differ according to differences in time, place or
circumstances.
Schedule
1—Repeal and transitional provisions
Part 1—Interpretation
(1) In this Schedule—
commencement day means the day on which this Schedule comes
into operation.
(2) A reference in an Act, a statutory instrument or any other instrument
or document to an undercover operation approved under the Criminal Law
(Undercover Operations) Act 1995 is to be read as a reference to an
undercover operation approved under this Act and is to be construed
accordingly.
Part 2—Repeal of Criminal Law (Undercover
Operations) Act 1995
2—Repeal of
Criminal Law (Undercover Operations)
Act 1995
The Criminal Law (Undercover Operations) Act 1995 is
repealed.
Part 3—Transitional provisions
3—Approved
undercover operations
An undercover operation that was approved under the repealed Act
immediately before the commencement day will be taken to be an undercover
operation approved under Part 2.
(1) An authority to use an assumed identity granted in accordance with the
policies and procedures of SA Police to a member of SA Police that was in force
immediately before the commencement day will be taken, for the period referred
to in subclause (2), to be an authority granted under Part 3 to use the
assumed identity.
(2) The period is from the start of the commencement day until the earlier
of the following:
(a) the day on which cancellation of the authority under Part 3 takes
effect; or
(b) 6 months after the commencement day.
(3) Nothing in this clause prevents the law enforcement officer from
applying for and being granted an authority under Part 3 in relation to the
assumed identity.
(4) An authority may be granted under Part 3 in relation to criminal
activity occurring before, on or after the commencement day.
(1) A witness identity protection certificate may be given under Part 4 in
relation to interstate proceedings (within the meaning of that Part) that is
commenced on or after the commencement day.
(2) An interstate witness identity protection certificate may be filed
under Part 4 in proceedings in this State that is commenced on or after the
commencement day.