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This is a Bill, not an Act. For current law, see the Acts databases.


CRIMINAL INVESTIGATION (COVERT POWERS) BILL 2011

                    Western Australia


 Criminal Investigation (Covert Powers)
               Bill 2011

                       CONTENTS


      Part 1 -- Preliminary
1.    Short title                                           2
2.    Commencement                                          2
3.    Terms used                                            2
4.    Crown bound                                           5
      Part 2 -- Controlled operations
      Division 1 -- General
5.    Terms used                                            6
6.    Cross-border controlled operations                    8
7.    Local controlled operation                            9
8.    Evidence obtained in controlled operations            9
9.    Non-application of certain Acts                       9
      Division 2 -- Authorisation of controlled
            operations
10.   Applications for authorities to conduct controlled
      operations                                            9
11.   Determination of applications                        11
12.   Matters to be taken into account -- all controlled
      operations                                           11
13.   Further matters to be taken into account --
      cross-border controlled operations                   13
14.   Further matters to be taken into account -- local
      controlled operations                                13
15.   Form of authority                                    13
16.   Duration of authorities                              16
17.   Variation of authority                               16


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Contents



      18.     Variations on authorising officer's own initiative    16
      19.     Applications for variation of authority               17
      20.     Determining applications for variation of authority   18
      21.     Form of variation of authority                        19
      22.     Cancellation of authorities                           20
      23.     Effect of authorities                                 21
      24.     Defect in authority                                   22
      25.     Retrospective authority                               22
      26.     Corruption and Crime Commission to be notified
              of retrospective authorities                          24
              Division 3 -- Conduct of controlled operations
              Subdivision 1 -- Controlled conduct engaged in for
                    purposes of controlled operations authorised
                    by Division 2
      27.     Protection from criminal responsibility for
              controlled conduct during authorised operations       24
      28.     Indemnification of participants against civil
              liability                                             25
      29.     Effect of sections 27 and 28 on other laws relating
              to criminal investigation                             26
      30.     Effect of being unaware of variation or
              cancellation of authority                             27
      31.     Protection from criminal responsibility for certain
              ancillary conduct                                     27
              Subdivision 2 -- Compensation and notification of
                    third parties
      32.     Compensation for property loss or damage              28
      33.     Notification requirements                             28
              Subdivision 3 -- Mutual recognition
      34.     Mutual recognition of corresponding authorities       29
              Division 4 -- Compliance and monitoring
              Subdivision 1 -- Restrictions on use, communication
                    and publication of information
      35.     Disclosure of operational information                 30
              Subdivision 2 -- Reporting and record-keeping
      36.     Principal law enforcement officers' reports           31
      37.     Chief officers' reports                               32
      38.     Annual report by Corruption and Crime
              Commission                                            34


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                  Criminal Investigation (Covert Powers) Bill 2011



                                                             Contents



39.   Keeping documents connected with authorised
      operations                                               35
40.   General register                                         36
      Subdivision 3 -- Inspections
41.   Inspection of records by Corruption and Crime
      Commission                                               38
      Division 5 -- Miscellaneous
42.   Evidence of authorities                                  39
43.   Delegation                                               40
      Part 3 -- Assumed identities
      Division 1 -- General
44.   Terms used                                               41
45.   Non-application of certain Acts                          43
46.   Relationship to other laws relating to assumed
      identities                                               43
      Division 2 -- Authority for assumed identity
47.   Application for authority to acquire or use assumed
      identity                                                 43
48.   Determination of application                             45
49.   Form of authority                                        46
50.   Duration of authority                                    48
51.   Variation of authority                                   48
52.   Cancellation of authority                                50
53.   Yearly review of formal authority                        52
      Division 3 -- Evidence of assumed identity
54.   Making records of births, deaths or marriages            52
55.   Cancellation of authority affecting records of
      births, deaths or marriages                              53
56.   Cancelling entries in Register                           54
57.   Restriction about access to application for entry in
      Register                                                 54
58.   Request for evidence of assumed identity                 54
59.   Government issuing agencies to comply with
      request                                                  55
60.   Non-government issuing agencies may comply
      with request                                             55
61.   Cancellation of evidence of assumed identity             56



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      62.     Protection from criminal liability -- officers of
              issuing agencies                                       56
      63.     Indemnity for issuing agencies and officers            56
              Division 4 -- Effect of authority
      64.     Assumed identity may be acquired and used              57
      65.     Protection from criminal liability -- authorised
              persons                                                58
      66.     Indemnity for authorised persons                       58
      67.     Particular qualifications                              59
      68.     Effect of being unaware of variation or
              cancellation of authority                              59
              Division 5 -- Mutual recognition under
                     corresponding laws
      69.     Requests to participating jurisdiction for evidence
              of assumed identity                                    60
      70.     Requests from participating jurisdiction for
              evidence of assumed identity                           60
      71.     Directions from participating jurisdiction to cancel
              evidence of assumed identity                           61
      72.     Indemnity for issuing agencies and officers            62
      73.     Application of Division to authorities under
              corresponding laws                                     62
              Division 6 -- Compliance and monitoring
              Subdivision 1 -- Misuse of assumed identity and
                    information
      74.     Misuse of assumed identity                             63
      75.     Disclosing information about assumed identity          63
              Subdivision 2 -- Reporting and record-keeping
      76.     Reports about authorities for assumed identities       64
      77.     Record-keeping                                         65
      78.     Audit of records                                       66
              Division 7 -- Miscellaneous
      79.     Delegation                                             66
              Part 4 -- Witness identity protection
              Division 1 -- General
      80.     Terms used                                             68
      81.     Things done by, or given to, party's lawyer            70


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                                                              Contents



       Division 2 -- Witness identity protection
              certificates for operatives
82.    Witness identity protection certificate -- giving         70
83.    Form of witness identity protection certificate          71
       Division 2A -- Provisions applicable to court
              proceeding
84.    Application of Division                                  73
85.    Filing and notification                                  73
86.    Leave for non-compliance                                 74
87.    Effect of witness identity protection certificate        74
88.    Orders to protect operative's true identity or
       location                                                 75
89.    Disclosure of operative's true identity to presiding
       officer                                                  76
90.    Disclosure of operative's true identity or location
       despite certificate                                      76
91.    Application for leave -- joinder as respondent            78
92.    Directions to jury                                       79
93.    Adjournment for appeal decision                          80
       Division 2B -- Provisions applicable to
              parliamentary proceeding
93A.   Application of Division                                  80
93B.   Witness identity protection certificate to be given
       to Parliament                                            81
93C.   Effect of witness identity protection certificate        81
93D.   Disclosure of operative's true identity or location
       despite certificate                                      82
93E.   Restrictions on content of reports to Parliament         84
       Division 2C -- Other matters
94.    Witness identity protection certificate --
       cancellation                                             84
95.    Permission to give information disclosing
       operative's true identity or location                    85
96.    Disclosure offences                                      85
97.    Evidentiary certificates                                 86
98.    Reports about witness identity protection
       certificates                                             86




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Criminal Investigation (Covert Powers) Bill 2011



Contents



              Division 3 -- Mutual recognition under
                     corresponding laws
      99.     Recognition of witness identity protection
              certificates under corresponding laws                      87
              Division 4 -- Miscellaneous
      100.    Delegation                                                 88
              Part 5 -- Miscellaneous
      101.    Regulations                                                89
      101A.   Review of Parts 2 and 3                                    89
              Part 6 -- Savings provisions
      102.    Term used: commencement day                                90
      103.    Savings provision relating to Misuse of Drugs
              Act 1981                                                   90
      104.    Savings provision relating to Prostitution Act 2000        90
              Part 7 -- Corruption and Crime
                   Commission Act 2003 amended
      105.    Act amended                                                91
      106.    Section 91 amended                                         91
              Part 7A -- Criminal Injuries
                   Compensation Act 2003 amended
      106A.   Act amended                                                92
      106B.   Section 13 amended                                         92
      106C.   Section 16 amended                                         92
      106D.   Section 17 amended                                         92
              Part 8 -- Misuse of Drugs Act 1981
                   amended
      107.    Act amended                                                93
      108.    Section 3 amended                                          93
      109.    Section 26 amended                                         93
      110.    Section 31 replaced                                        94
              31.      Undercover officers                          94
      111.    Section 34 amended                                         94




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                                                                   Contents



       Part 9 -- Prostitution Act 2000
            amended
112.   Act amended                                                    95
113.   Section 35 deleted                                             95
114.   Section 36 amended                                             95
115.   Section 53 deleted                                             95
       Part 10 -- Witness Protection
            (Western Australia) Act 1996
            amended
116.   Act amended                                                    96
117.   Section 22A inserted                                           96
       22A.      Effect of new identity order                 96
118.   Section 25 amended                                             96
119.   Part 3 Division 1 heading inserted                             97
       Division 1 -- General
120.   Sections 30 and 31 deleted                                     97
121.   Section 32 amended                                             97
122.   Part 3 Division 2 heading and Part 3 Division 2
       Subdivision 1 heading inserted                                 97
       Division 2 -- Evidence by participants
       Subdivision 1 -- Terms Used
123.   Section 33 replaced                                            98
       33.      Terms used                                    98
       Subdivision 2 -- Non-disclosure certificates for
             protected persons
       34A.     Non-disclosure certificates                  100
       34B.     What non-disclosure certificate must state   100
       Subdivision 3 -- Provisions applicable to court
             proceedings
       34CA.    Application of Subdivision                   101
       34C.     Effect of non-disclosure certificate         101
       34D.     Disclosure of protected person's identity
                despite certificate                          103
       34E.     Directions to jury                           105
       34F.     Adjournment for appeal decision              106
       34G.     Jurisdiction to hear and determine appeals   106
       34H.     Recognition of non-disclosure certificates
                under corresponding laws                     106




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Contents



              Subdivision 4 -- Provisions applicable to
                    parliamentary proceedings
              34I.     Application of Subdivision                  107
              34J.     Effect of non-disclosure certificate        107
              34K.     Disclosure of protected person's identity
                       despite certificate                         109
              34L.     Restrictions on content of reports to
                       Parliament                                  110
      124.    Part 3 Division 3 heading inserted                         110
              Division 3 -- Miscellaneous
      125.    Part 5 heading inserted                                    111
              Part 5 -- Transitional and savings provisions
      126.    Section 41 inserted                                        111
              41.       Savings provision relating to Criminal
                        Investigation (Covert Powers) Act 2011     111

              Defined Terms




page viii
                           Western Australia


                     LEGISLATIVE ASSEMBLY

                      (As amended in Committee)



      Criminal Investigation (Covert Powers)
                    Bill 2011


                               A Bill for


An Act to facilitate criminal investigations and intelligence-gathering
in relation to criminal activity by providing for --
 the authorisation, conduct and monitoring of covert law
   enforcement operations; and
 the acquisition and use of assumed identities by participants in
   covert law enforcement operations; and
 the protection of the identity of participants in covert law
   enforcement operations,
and to amend the Corruption and Crime Commission Act 2003, the
Misuse of Drugs Act 1981, the Prostitution Act 2000 and the Witness
Protection (Western Australia) Act 1996, and for related purposes.



The Parliament of Western Australia enacts as follows:




                                                                 page 1
     Criminal Investigation (Covert Powers) Bill 2011
     Part 1          Preliminary

     s. 1



1                           Part 1 -- Preliminary
2    1.       Short title
3             This is the Criminal Investigation (Covert Powers) Act 2011.

4    2.       Commencement
5             This Act comes into operation as follows --
6              (a) sections 1 and 2 -- on the day on which this Act
7                    receives the Royal Assent;
8              (b) the rest of the Act -- on a day fixed by proclamation,
9                    and different days may be fixed for different provisions.

10   3.       Terms used
11            In this Act, unless the contrary intention appears --
12            Australian Crime Commission means the Australian Crime
13            Commission established by the Australian Crime Commission
14            Act 2002 (Commonwealth);
15            authorising officer, for a law enforcement agency, means --
16              (a) in relation to the Police Force or the fisheries
17                    department -- the Commissioner of Police;
18              (b) in relation to the Australian Crime Commission -- the
19                    Chief Executive Officer of the Australian Crime
20                    Commission;
21            chief officer, of a law enforcement agency, means --
22              (a) in relation to the Police Force -- the Commissioner of
23                    Police;
24              (b) in relation to the Australian Crime Commission -- the
25                    Chief Executive Officer of the Australian Crime
26                    Commission;
27              (c) in relation to the fisheries department -- the chief
28                    executive officer of the department;
29            conduct includes any act or omission;


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                       Criminal Investigation (Covert Powers) Bill 2011
                                            Preliminary          Part 1

                                                                    s. 3



1    criminal activity means conduct that constitutes the commission
2    of an offence by one or more persons;
3    disciplinary proceeding means a proceeding of a disciplinary
4    nature under a law of any jurisdiction;
5    fisheries department means the department principally assisting
6    in the administration of the Fish Resources Management
7    Act 1994;
8    fisheries officer has the meaning given in the Fish Resources
9    Management Act 1994 section 4(1);
10   government agency means an authority or body (whether a
11   body corporate or not) established or incorporated for a public
12   purpose by a law of this jurisdiction, a participating jurisdiction
13   or the Commonwealth, and includes a body corporate
14   incorporated under a law of a jurisdiction or of the
15   Commonwealth in which this jurisdiction, a participating
16   jurisdiction or the Commonwealth has a controlling interest;
17   jurisdiction means a State, a Territory or the Commonwealth;
18   law enforcement agency means --
19     (a) the Police Force; or
20     (b) the Australian Crime Commission; or
21     (c) the fisheries department;
22   law enforcement officer means --
23     (a) a police officer; or
24     (b) a person who is seconded to the Police Force, including
25           (but not limited to) a police officer (however described),
26           of another jurisdiction; or
27     (c) a member of staff of the Australian Crime Commission;
28           or
29     (d) a fisheries officer holding a prescribed office in the
30           fisheries department;




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     Criminal Investigation (Covert Powers) Bill 2011
     Part 1          Preliminary

     s. 3



1             law enforcement operation means an operation that is
2             conducted, or is intended to be conducted, by a law enforcement
3             agency or other government agency for the purpose of --
4               (a) obtaining evidence that may lead to the prosecution of a
5                     person for criminal activity; or
6               (b) arresting any person suspected of being involved in
7                     criminal activity; or
8               (c) frustrating criminal activity; or
9               (d) carrying out an activity that is reasonably necessary to
10                    facilitate the achievement of any purpose referred to in
11                    paragraphs (a) to (c);
12            Minister --
13              (a) in relation to the Police Force, means the Minister
14                    administering the Police Act 1892;
15              (b) in relation to the Australian Crime Commission, means
16                    the Minister administering the Australian Crime
17                    Commission (Western Australia) Act 2004;
18              (c) in relation to the fisheries department, means the
19                    Minister administering the Fish Resources Management
20                    Act 1994;
21            Police Force means the Police Force of Western Australia
22            provided for by the Police Act 1892;
23            police officer means a person appointed under the Police
24            Act 1892 Part I to be a member of the Police Force;
25            prescribed means prescribed by regulations made under this
26            Act;
27            this jurisdiction --
28              (a) means Western Australia; and
29              (b) for the purposes of any suspected criminal activity being
30                    investigated by the fisheries department, includes any
31                    waters not within the limits of Western Australia that are
32                    WA waters as defined in the Fish Resources
33                    Management Act 1994 section 5(b) to (d).

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                                 Criminal Investigation (Covert Powers) Bill 2011
                                                      Preliminary          Part 1

                                                                              s. 4



1   4.         Crown bound
2        (1)   This Act binds the State and, so far as the legislative power of
3              Parliament permits, the Crown in all its other capacities.
4        (2)   Nothing in this Act makes the State, or the Crown in any of its
5              other capacities, liable to be prosecuted for an offence.




                                                                           page 5
     Criminal Investigation (Covert Powers) Bill 2011
     Part 2          Controlled operations
     Division 1      General
     s. 5



1                    Part 2 -- Controlled operations
2                            Division 1 -- General
3    5.       Terms used
4             In this Part, unless the contrary intention appears --
5             authorised operation means a controlled operation for which an
6             authority is in force;
7             authority means an authority in force under Division 2, and
8             includes any variation of such an authority and any retrospective
9             authority granted under section 25;
10            civilian participant, in an authorised operation, means a
11            participant in the operation who is not a law enforcement
12            officer;
13            controlled conduct means conduct for which a person would,
14            but for section 27 or 34, be criminally responsible;
15            controlled operation means a law enforcement operation that
16            involves, or may involve, controlled conduct;
17            corresponding authorised operation means any operation in the
18            nature of a controlled operation that is authorised by or under
19            the provisions of a corresponding law;
20            corresponding authority means an authority authorising a
21            controlled operation (within the meaning of that term in a
22            corresponding law) that is in force under the corresponding law;
23            corresponding law means a law of another jurisdiction that
24            corresponds to this Part, and includes a prescribed law of
25            another jurisdiction;
26            corresponding participant means a person who is authorised by
27            a corresponding authority to participate in a corresponding
28            authorised operation;
29            Corruption and Crime Commission means the Corruption and
30            Crime Commission established under the Corruption and Crime
31            Commission Act 2003;


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                      Criminal Investigation (Covert Powers) Bill 2011
                                  Controlled operations         Part 2
                                               General     Division 1
                                                                   s. 5



1    cross-border controlled operation has the meaning given in
2    section 6;
3    formal application has the meaning given in section 10(2)(a);
4    formal authority has the meaning given in section 15(1)(a);
5    formal variation application has the meaning given in
6    section 19(3)(a);
7    formal variation of authority has the meaning given in
8    section 21(1)(a);
9    illicit goods means goods the possession of which is a
10   contravention of the law of this jurisdiction in the circumstances
11   of the particular case;
12   law enforcement participant, in an authorised operation, means
13   a participant in the operation who is a law enforcement officer;
14   local controlled operation has the meaning given in section 7;
15   participant, in an authorised operation, means a person who is
16   authorised under this Part to engage in controlled conduct for
17   the purposes of the operation;
18   participating jurisdiction means a jurisdiction in which a
19   corresponding law is in force;
20   principal law enforcement officer, for an authorised operation,
21   means the law enforcement officer who is responsible for the
22   conduct of the operation;
23   relevant offence means --
24      (a) an offence against the law of this jurisdiction punishable
25            by imprisonment for 3 years or more; or
26      (b) an offence not covered by paragraph (a) that is
27            prescribed for the purposes of this definition, being an
28            offence under any of the following Acts --
29               (i) the Classification (Publications, Films and
30                    Computer Games) Enforcement Act 1996;
31              (ii) The Criminal Code;
32             (iii) the Firearms Act 1973;


                                                                page 7
     Criminal Investigation (Covert Powers) Bill 2011
     Part 2          Controlled operations
     Division 1      General
     s. 6



1                        (iv) the Fish Resources Management Act 1994;
2                         (v) the Misuse of Drugs Act 1981;
3                        (vi) the Prostitution Act 2000;
4                       (vii) the Weapons Act 1999;
5               sexual offence means --
6                 (a) an offence under The Criminal Code Part V
7                       Chapter XXXI; or
8                 (b) any other offence of a similar kind prescribed for the
9                       purposes of this definition;
10              suspect means a person reasonably suspected of having
11              committed or being likely to have committed, or of committing
12              or being likely to commit, a relevant offence;
13              urgent application has the meaning given in section 10(2)(b);
14              urgent authority has the meaning given in section 15(1)(b);
15              urgent variation application has the meaning given in
16              section 19(3)(b);
17              urgent variation of authority has the meaning given in
18              section 21(1)(b).

19   6.         Cross-border controlled operations
20        (1)   When this Part refers to a cross-border controlled operation it
21              means a controlled operation that is conducted, or is intended to
22              be conducted --
23                (a) in this jurisdiction and in one or more participating
24                     jurisdictions; or
25                (b) in one or more participating jurisdictions.
26        (2)   For the purposes of subsection (1), a controlled operation is to
27              be taken to be conducted, or intended to be conducted, in this
28              jurisdiction if a law enforcement officer of this jurisdiction is, or
29              is to be, authorised under this Part to engage in controlled
30              conduct for the purposes of the operation.



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                                    Criminal Investigation (Covert Powers) Bill 2011
                                                 Controlled operations        Part 2
                                 Authorisation of controlled operations  Division 2
                                                                                 s. 7



1    7.           Local controlled operation
2                 When this Part refers to a local controlled operation it means a
3                 controlled operation that is conducted, or is intended to be
4                 conducted, wholly in this jurisdiction.

5    8.           Evidence obtained in controlled operations
6          (1)    Subject to subsection (2), this Part is not intended to limit a
7                 discretion that a court has --
8                   (a) to admit or exclude evidence in any proceedings; or
9                   (b) to stay criminal proceedings in the interests of justice.
10         (2)    In determining whether evidence should be admitted or
11                excluded in any proceedings, the fact that the evidence was
12                obtained as a result of a person engaging in criminal activity is
13                to be disregarded if --
14                  (a) the person was a participant or corresponding participant
15                        acting in the course of an authorised operation or
16                        corresponding authorised operation; and
17                  (b) the criminal activity was controlled conduct within the
18                        meaning of that term in this Part or a corresponding law.

19   9.           Non-application of certain Acts
20                The following Acts do not apply to investigations, operations,
21                activities or records under this Part --
22                  (a) the State Records Act 2000;
23                  (b) the Freedom of Information Act 1992, despite
24                         section 8(1) of that Act.

25               Division 2 -- Authorisation of controlled operations
26   10.          Applications for authorities to conduct controlled operations
27         (1)    A law enforcement officer of a law enforcement agency may
28                apply to the authorising officer for the agency for authority to
29                conduct a controlled operation on behalf of the agency.


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     Criminal Investigation (Covert Powers) Bill 2011
     Part 2          Controlled operations
     Division 2      Authorisation of controlled operations
     s. 10



1       (2)    An application for an authority may be made --
2               (a) in writing (a formal application); or
3               (b) orally (an urgent application), if the applicant has
4                     reason to believe that the delay caused by making a
5                     formal application may affect the success of the
6                     operation.
7       (3)    A formal application must be in a physical form, signed by the
8              applicant.
9       (4)    However if it is impracticable in the circumstances for a
10             physical document to be delivered to the authorising officer, a
11             formal application may take the form of --
12               (a) a fax; or
13               (b) an email or other electronic document, in which case the
14                    document need not be signed.
15      (5)    An urgent application may be made in person, by telephone or
16             any other electronic means.
17      (6)    Nothing in this Division prevents an application for an authority
18             being made in respect of a controlled operation that has been the
19             subject of a previous application.
20      (7)    In any application, whether formal or urgent, the applicant
21             must --
22               (a) provide sufficient information to enable the authorising
23                     officer to decide whether or not to grant the application;
24                     and
25               (b) state whether or not the proposed operation, or any other
26                     controlled operation in respect of the same criminal
27                     activity, has been the subject of an earlier application for
28                     an authority or variation of an authority and, if so,
29                     whether or not the authority or variation was granted.
30      (8)    The authorising officer may require the applicant to furnish such
31             additional information concerning the proposed controlled


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                                  Criminal Investigation (Covert Powers) Bill 2011
                                               Controlled operations        Part 2
                               Authorisation of controlled operations  Division 2
                                                                              s. 11



1                operation as is necessary for the authorising officer's proper
2                consideration of the application.
3          (9)   As soon as practicable after making an urgent application, the
4                applicant must make a record in writing of the application and
5                give a copy of it to the authorising officer.

6    11.         Determination of applications
7                After considering an application for authority to conduct a
8                controlled operation, and any additional information furnished
9                under section 10(8), the authorising officer --
10                 (a) may authorise the operation by granting the authority,
11                       either unconditionally or subject to conditions; or
12                 (b) may refuse the application.
13   12.         Matters to be taken into account -- all controlled operations
14         (1)   An authority to conduct a controlled operation must not be
15               granted unless the authorising officer is satisfied on reasonable
16               grounds --
17                 (a) that a relevant offence has been, is being or is likely to
18                      be committed; and
19                 (b) that the authority is within the administrative
20                      responsibility of the law enforcement agency; and
21                 (c) that any unlawful conduct involved in conducting the
22                      operation will be limited to the maximum extent
23                      consistent with conducting an effective controlled
24                      operation; and
25                 (d) that the operation will be conducted in a way that will
26                      minimise the risk of more illicit goods being under the
27                      control of persons, other than law enforcement officers,
28                      at the end of the operation than are reasonably necessary
29                      to enable the officers to achieve the purpose of the
30                      controlled operation; and
31                 (e) that the proposed controlled conduct will be capable of
32                      being accounted for in a way that will enable the


                                                                           page 11
     Criminal Investigation (Covert Powers) Bill 2011
     Part 2          Controlled operations
     Division 2      Authorisation of controlled operations
     s. 12



1                      reporting requirements of Division 4 to be complied
2                      with; and
3                (f)   that the operation does not involve any participant in the
4                      operation inducing or encouraging another person to
5                      engage in criminal activity of a kind that the other
6                      person could not reasonably have been expected to
7                      engage in unless so induced or encouraged; and
8               (g)    that any conduct involved in the operation will not --
9                         (i) seriously endanger the health or safety of any
10                             person; or
11                       (ii) cause the death of, or serious injury to, any
12                             person; or
13                      (iii) involve the commission of a sexual offence
14                             against any person; or
15                      (iv) result in unlawful loss of or serious damage to
16                             property (other than illicit goods).
17      (2)    A person must not be authorised to participate in a controlled
18             operation unless the authorising officer is satisfied that the
19             person has the appropriate skills or training to participate in the
20             operation.
21      (3)    A civilian participant --
22              (a) must not be authorised to participate in any aspect of a
23                     controlled operation unless the authorising officer is
24                     satisfied that it is wholly impracticable for a law
25                     enforcement participant to participate in that aspect of
26                     the operation; and
27              (b) must not be authorised to engage in controlled conduct
28                     unless the authorising officer is satisfied that it is wholly
29                     impracticable for the civilian participant to participate in
30                     the aspect of the controlled operation referred to in
31                     paragraph (a) without engaging in that conduct.




     page 12
                                   Criminal Investigation (Covert Powers) Bill 2011
                                                Controlled operations        Part 2
                                Authorisation of controlled operations  Division 2
                                                                               s. 13



1    13.         Further matters to be taken into account -- cross-border
2                controlled operations
3                In addition to section 12, an authority to conduct a cross-border
4                controlled operation must not be granted unless the authorising
5                officer is satisfied on reasonable grounds --
6                  (a) that the controlled operation will be, or is likely to be,
7                         conducted --
8                           (i) in this jurisdiction and in one or more
9                                 participating jurisdictions; or
10                         (ii) in one or more participating jurisdictions;
11                        and
12                 (b) that the nature and extent of the suspected criminal
13                        activity are such as to justify the conduct of a controlled
14                        operation --
15                          (i) in this jurisdiction and in one or more
16                                participating jurisdictions; or
17                         (ii) in one or more participating jurisdictions.

18   14.         Further matters to be taken into account -- local controlled
19               operations
20               In addition to section 12, an authority to conduct a local
21               controlled operation must not be granted unless the authorising
22               officer is satisfied on reasonable grounds --
23                 (a) that the controlled operation will be, or is likely to be,
24                        conducted wholly in this jurisdiction; and
25                 (b) that the nature and extent of the suspected criminal
26                        activity are such as to justify the conduct of a controlled
27                        operation in this jurisdiction.

28   15.         Form of authority
29         (1)   An authority to conduct a controlled operation may be
30               granted --
31                 (a) in writing (a formal authority); or

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1               (b)   orally (an urgent authority), if the authorising officer is
2                     satisfied that the delay caused by granting a formal
3                     authority may affect the success of the operation.
4       (2)    A formal authority must be in a physical form, signed by the
5              authorising officer.
6       (3)    However if it is impracticable in the circumstances for a
7              physical document to be delivered to the applicant, a formal
8              authority may take the form of --
9                (a) a fax; or
10               (b) an email or other electronic document, in which case the
11                     document need not be signed.
12      (4)    An urgent authority may be granted in person, by telephone or
13             any other electronic means.
14      (5)    Nothing in this Division prevents an authority being granted in
15             respect of a controlled operation that has been the subject of a
16             previous authority.
17      (6)    An authority, whether formal or urgent, must do all of the
18             following --
19               (a) state the name, and rank or position, of the person
20                    granting the authority;
21               (b) identify the principal law enforcement officer and, if the
22                    principal law enforcement officer is not the applicant for
23                    the authority, the name of the applicant;
24               (c) state whether the authority is for a cross-border
25                    controlled operation or a local controlled operation;
26               (d) for a cross-border controlled operation, state whether it
27                    is to be, or is likely to be, conducted --
28                       (i) in this jurisdiction and in one or more
29                            participating jurisdictions specified in the
30                            authority; or
31                      (ii) in one or more participating jurisdictions
32                            specified in the authority;

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1           (e)    state whether the authority is a formal authority or an
2                  urgent authority;
3            (f)   identify each person who may engage in controlled
4                  conduct for the purposes of the controlled operation;
5           (g)    identify the nature of the criminal activity (including the
6                  suspected relevant offences) in respect of which the
7                  controlled conduct is to be engaged in;
8           (h)    identify --
9                     (i) with respect to the law enforcement participants,
10                         the nature of the controlled conduct that those
11                         participants may engage in; and
12                   (ii) with respect to the civilian participants, the
13                         particular controlled conduct, if any, that each
14                         such participant may engage in;
15           (i)   identify (to the extent known) any suspect;
16           (j)   specify the period of validity of the authority, being a
17                 period not exceeding 6 months in the case of a formal
18                 authority or 7 days in the case of an urgent authority;
19          (k)    specify any conditions to which the conduct of the
20                 operation is subject;
21           (l)   state the date and time when the authority is granted;
22          (m)    identify (to the extent known) --
23                    (i) the nature and quantity of any illicit goods that
24                         will be involved in the operation; and
25                   (ii) the route through which those goods will pass in
26                         the course of the operation.
27   (7)   A person is sufficiently identified for the purposes of
28         subsection (6)(f) if the person is identified --
29           (a) by an assumed name under which the person is
30                operating; or
31           (b) by a code name or code number,



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1                as long as the assumed name, code name or code number can be
2                matched to the person's identity by reference to records kept by
3                the chief officer.
4          (8)   The authorising officer must, as soon as practicable after
5                granting an urgent authority, make a record in writing of the
6                particulars referred to in subsection (6) relating to the authority.

7    16.         Duration of authorities
8                Unless it is sooner cancelled, an authority has effect for the
9                period of validity specified in it in accordance with
10               section 15(6)(j).

11   17.         Variation of authority
12         (1)   The authorising officer may vary an authority --
13                (a) at any time on the authorising officer's own initiative; or
14                (b) on application under section 19(1).
15         (2)   However, a variation cannot be made that has the effect of
16               extending the period of validity of an urgent authority.
17         (3)   The authorising officer must, as soon as practicable after
18               varying an authority, prepare and give to the principal law
19               enforcement officer for the authorised operation a written
20               document that complies with section 21.

21   18.         Variations on authorising officer's own initiative
22               The authorising officer may vary an authority under
23               section 17(1)(a) for any one or more of the following
24               purposes --
25                 (a) to extend the period of validity of the authority (except
26                       as provided by section 17(2));
27                 (b) to authorise additional or alternative persons to engage
28                       in controlled conduct for the purposes of the operation;
29                 (c) to authorise participants in the operation to engage in
30                       additional or alternative controlled conduct;

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1                 (d)   to identify additional suspects (to the extent known);
2                 (e)   if the principal law enforcement officer has changed
3                       since the authority was granted, to identify the new
4                       principal law enforcement officer.

5    19.         Applications for variation of authority
6          (1)   The principal law enforcement officer for an authorised
7                operation, or any other law enforcement officer on behalf of the
8                principal law enforcement officer, may apply to the authorising
9                officer for a variation of authority for any one or more of the
10               following purposes --
11                 (a) to extend the period of validity of the authority (except
12                       as provided by section 17(2));
13                 (b) to authorise additional or alternative persons to engage
14                       in controlled conduct for the purposes of the operation;
15                 (c) to authorise participants in the operation to engage in
16                       additional or alternative controlled conduct;
17                 (d) to identify additional suspects (to the extent known);
18                 (e) if the principal law enforcement officer has changed
19                       since the authority was granted, to identify the new
20                       principal law enforcement officer.
21         (2)   More than one application for a variation may be made in
22               respect of the same authority, but no single variation may
23               extend the period of validity of an authority for more than
24               6 months at a time.
25         (3)   An application for a variation of an authority may be made --
26                (a) in writing (a formal variation application); or
27                (b) orally (an urgent variation application), if the applicant
28                      has reason to believe that the delay caused by making a
29                      formal variation application may affect the success of
30                      the operation.
31         (4)   A formal variation application must be in a physical form,
32               signed by the applicant.

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1          (5)   However if it is impracticable in the circumstances for a
2                physical document to be delivered to the authorising officer, a
3                formal variation application may take the form of --
4                  (a) a fax; or
5                  (b) an email or other electronic document, in which case the
6                       document need not be signed.
7          (6)   An urgent variation application may be made in person, by
8                telephone or any other electronic means.
9          (7)   The authorising officer may require the applicant to furnish such
10               additional information concerning the proposed variation as is
11               necessary for the authorising officer's proper consideration of
12               the application.
13         (8)   As soon as practicable after making an urgent variation
14               application, the applicant must make a record in writing of the
15               application and give a copy of it to the authorising officer.

16   20.         Determining applications for variation of authority
17         (1)   After considering an application for a variation of authority, and
18               any additional information furnished under section 19(7), the
19               authorising officer --
20                 (a) may vary the authority in accordance with the
21                       application, or part of the application, either
22                       unconditionally or subject to conditions; or
23                 (b) may refuse the application.
24         (2)   Sections 12, 13 and 14 apply to an application for a variation of
25               authority under this section in the same way as they apply to an
26               application for authority under section 11.
27         (3)   Without limiting subsection (2), a variation of authority must
28               not be granted unless the authorising officer is satisfied on
29               reasonable grounds that the variation will not authorise a
30               significant alteration of the nature of the authorised operation
31               concerned.


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1    21.         Form of variation of authority
2          (1)   A variation of authority may be made --
3                 (a) in writing (a formal variation of authority) to the
4                       principal law enforcement officer for the authorised
5                       operation, or another law enforcement officer on behalf
6                       of the principal law enforcement officer, as the case
7                       requires; or
8                 (b) orally (an urgent variation of authority) to the principal
9                       law enforcement officer for the authorised operation, or
10                      another law enforcement officer on behalf of the
11                      principal law enforcement officer, as the case requires, if
12                      the person making the variation is satisfied that the
13                      delay caused by making a formal variation of authority
14                      may affect the success of the operation.
15         (2)   A formal variation of authority must be in a physical form,
16               signed by the authorising officer.
17         (3)   However if it is impracticable in the circumstances for a
18               physical document to be delivered to the principal law
19               enforcement officer for the authorised operation, or another law
20               enforcement officer on behalf of the principal law enforcement
21               officer, as the case requires, a formal variation of authority may
22               take the form of --
23                 (a) a fax; or
24                 (b) an email or other electronic document, in which case the
25                        document need not be signed.
26         (4)   An urgent variation of authority may be made in person, by
27               telephone or any other electronic means.
28         (5)   A variation of authority must --
29                (a) identify the authorised operation for which the authority
30                      is in force; and
31                (b) state the name, and rank or position, of the person
32                      making the variation of authority; and


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1                  (c)   state whether the variation of authority is a formal
2                        variation of authority or an urgent variation of authority;
3                        and
4                 (d)    if the variation is made under section 17(1)(a) --
5                           (i) describe the variation having regard to the
6                                purposes referred to in section 18 in respect of
7                                which the variation is or was made; and
8                          (ii) specify the reasons why the variation of authority
9                                is or was made;
10                       and
11                 (e)   if the variation is made under section 17(1)(b) --
12                          (i) state the name of the applicant; and
13                         (ii) describe the variation having regard to the
14                               purposes referred to in section 19(1) in respect of
15                               which the application for the variation was made;
16                       and
17                 (f)   state the date and time when the variation of authority is
18                       or was made.
19         (6)   The authorising officer must, as soon as practicable after
20               making an urgent variation of authority, make a record in
21               writing of the particulars referred to in subsection (5) relating to
22               the variation of authority.

23   22.         Cancellation of authorities
24         (1)   The authorising officer may, by order in writing given to the
25               principal law enforcement officer for an authorised operation,
26               cancel the authority at any time and for any reason.
27         (2)   Without limiting subsection (1), the authorising officer may
28               cancel an authority for an authorised operation at any time at the
29               request of the principal law enforcement officer for the
30               operation.




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1          (3)   Cancellation of an authority for a controlled operation takes
2                effect at the time when the order is made or at the later time
3                specified in the order.
4          (4)   The order must specify the reasons for the cancellation of the
5                authority.

6    23.         Effect of authorities
7          (1)   While it has effect, an authority for a controlled operation --
8                 (a) authorises each law enforcement participant to engage in
9                       the controlled conduct specified in the authority in
10                      respect of the law enforcement participants; and
11                (b) authorises each civilian participant, if any, to engage in
12                      the particular controlled conduct, if any, specified in the
13                      authority in respect of that participant.
14         (2)   In the case of a local controlled operation, the authority
15               authorises each participant to engage in the conduct referred to
16               in subsection (1) in this jurisdiction but not in any other
17               jurisdiction.
18         (3)   In the case of a cross-border controlled operation, the authority
19               authorises each participant to engage in the conduct referred to
20               in subsection (1) --
21                 (a) in this jurisdiction and in one or more participating
22                       jurisdictions; or
23                 (b) in one or more participating jurisdictions,
24               subject to any corresponding law of that participating
25               jurisdiction.
26         (4)   The authority to engage in controlled conduct given to a
27               participant cannot be delegated to any other person.




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1    24.         Defect in authority
2                An application for authority or variation of authority, and any
3                authority or variation of authority granted or made on the basis
4                of such an application, is not invalidated by any defect, other
5                than a defect that affects the application, authority or variation
6                in a material particular.

7    25.         Retrospective authority
8          (1)   This section applies to local controlled operations but not to
9                cross-border controlled operations.
10         (2)   If a participant in an authorised operation engages in unlawful
11               conduct (other than controlled conduct) in the course of the
12               operation, the principal law enforcement officer for the
13               operation may, within 24 hours (or any longer period that the
14               authorising officer may, in exceptional circumstances, allow)
15               after the participant engages in that conduct, apply to the
16               authorising officer for retrospective authority for the conduct.
17         (3)   An application under this section may be made in such manner
18               as the authorising officer permits.
19         (4)   The authorising officer may require the principal law
20               enforcement officer to furnish such additional information
21               concerning the relevant conduct as is necessary for the
22               authorising officer's proper consideration of the application.
23         (5)   After considering an application under subsection (2), and any
24               additional information furnished under subsection (4), the
25               authorising officer --
26                 (a) may grant retrospective authority in accordance with the
27                       application; or
28                 (b) may refuse the application.




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1    (6)   Retrospective authority must not be granted unless the
2          authorising officer is satisfied --
3            (a) that the participant who engaged in the conduct believed
4                  on reasonable grounds --
5                     (i) that there was a substantial risk to the success of
6                          the authorised operation; or
7                    (ii) that there was a substantial risk to the health or
8                          safety of a participant in the operation, or any
9                          other person, as a direct result of the conduct of
10                         the authorised operation; or
11                  (iii) that criminal activity other than the criminal
12                         activity in respect of which the authorised
13                         operation is being conducted had occurred, or
14                         was likely to occur, and that there was a
15                         substantial risk that evidence relating to that
16                         criminal activity would be lost,
17                 and the participant could not avoid that risk otherwise
18                 than by engaging in the relevant conduct; and
19           (b) that, at all times prior to those circumstances arising, the
20                 participant had been acting in good faith; and
21           (c) that the participant had not foreseen, and could not
22                 reasonably be expected to have foreseen, that those
23                 circumstances would arise; and
24           (d) that, had it been possible to foresee that those
25                 circumstances would arise, authority for the relevant
26                 conduct would have been sought; and
27           (e) that it was not reasonably possible in those
28                 circumstances for the participant to seek a variation of
29                 the authority for the operation to authorise the relevant
30                 conduct.
31   (7)   Subsection (6) does not allow retrospective authority to be
32         granted with respect to any conduct that --
33           (a) seriously endangered the health or safety of any person;
34                or

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1                 (b)    caused the death of, or serious injury to, any person; or
2                 (c)    involved the commission of a sexual offence against any
3                        person; or
4                 (d)    resulted in unlawful loss of or serious damage to
5                        property (other than illicit goods).
6          (8)   The authorising officer's power to grant a retrospective
7                authority under this section cannot be delegated to any other
8                person.

9    26.         Corruption and Crime Commission to be notified of
10               retrospective authorities
11         (1)   An authorising officer who grants a retrospective authority
12               under section 25 must provide the Corruption and Crime
13               Commission with written details of the retrospective authority
14               and the circumstances justifying that authority.
15         (2)   The details must be provided as soon as practicable after the
16               retrospective authority is granted but, in any case, no later than
17               7 days after it is granted.
18         (3)   The Corruption and Crime Commission may require the
19               authorising officer to furnish such further information
20               concerning the retrospective authority as is necessary for the
21               Corruption and Crime Commission's proper consideration of it.

22               Division 3 -- Conduct of controlled operations
23      Subdivision 1 -- Controlled conduct engaged in for purposes of
24              controlled operations authorised by Division 2

25   27.         Protection from criminal responsibility for controlled
26               conduct during authorised operations
27               Despite any other written law of this jurisdiction, a participant
28               who engages in conduct (whether in this jurisdiction or
29               elsewhere) in an authorised operation in the course of, and for



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1                the purposes of, the operation is not, if engaging in that conduct
2                is an offence, criminally responsible for the offence if --
3                  (a) the conduct is authorised by, and is engaged in
4                        accordance with, the authority for the operation; and
5                  (b) the conduct does not involve the participant inducing or
6                        encouraging another person to engage in criminal
7                        activity of a kind that the other person could not
8                        reasonably be expected to engage in unless so induced
9                        or encouraged; and
10                 (c) the conduct does not involve the participant engaging in
11                       any conduct that is likely to --
12                          (i) cause the death of, or serious injury to, any
13                                person; or
14                         (ii) involve the commission of a sexual offence
15                                against any person;
16                       and
17                 (d) if the participant is a civilian participant, he or she acts
18                       in accordance with the instructions of a law enforcement
19                       officer.

20   28.         Indemnification of participants against civil liability
21         (1)   In this section --
22               participant does not include a police officer.
23         (2)   The chief officer of a law enforcement agency must indemnify a
24               participant in an authorised operation against any civil liability
25               (including reasonable costs) that the participant incurs because
26               of conduct that the participant engages in if --
27                 (a) the participant engages in the conduct in the course of,
28                       and for the purposes of, the operation in accordance with
29                       the authority for the operation; and
30                 (b) the conduct does not involve the participant inducing or
31                       encouraging another person to engage in criminal
32                       activity of a kind that the other person could not


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1                      reasonably be expected to engage in unless so induced
2                      or encouraged; and
3                (c)   the conduct does not involve the participant engaging in
4                      any conduct that is likely to --
5                         (i) cause the death of, or serious injury to, any
6                              person; or
7                        (ii) involve the commission of a sexual offence
8                              against any person;
9                      and
10              (d)    if the participant is a civilian participant, he or she acts
11                     in accordance with the instructions of a law enforcement
12                     officer; and
13               (e)   the requirements, if any, specified in the regulations
14                     have been met.

15   29.       Effect of sections 27 and 28 on other laws relating to
16             criminal investigation
17             Sections 27 and 28 do not apply to a person's conduct that is, or
18             could have been, authorised under a law of this jurisdiction
19             relating to one or more of the following --
20               (a) arrest or detention of individuals, except an arrest
21                     carried out as a result of an authorised operation;
22               (b) searches of individuals;
23               (c) entry onto, or searches or inspection of, premises;
24               (d) searches, inspections or seizures of other property;
25               (e) forensic procedures;
26                (f) electronic surveillance devices or telecommunications
27                     interception;
28               (g) identification procedures;
29               (h) the acquisition or use of assumed identities;
30                (i) any other matter concerning powers of criminal
31                     investigation.


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1    30.         Effect of being unaware of variation or cancellation of
2                authority
3          (1)   If an authority for a controlled operation is varied in a way that
4                limits its scope, this Division continues to apply to a participant
5                in the operation as if the authority had not been varied in that
6                way, for as long as --
7                   (a) the participant is unaware of the variation; and
8                  (b) the authorising officer for the relevant agency has taken
9                         reasonable measures to ensure the participant is aware of
10                        any variation.
11         (2)   If an authority for a controlled operation is cancelled, this
12               Division continues to apply to a participant in the operation as if
13               the authority had not been cancelled, for as long as --
14                  (a) the participant is unaware of the cancellation; and
15                 (b) the authorising officer has taken reasonable measures to
16                       ensure the participant is aware of any cancellation.

17   31.         Protection from criminal responsibility for certain ancillary
18               conduct
19         (1)   This section applies to conduct such as aiding and abetting the
20               commission of an offence or of conspiring to commit an offence
21               (ancillary conduct) for which a person may be criminally
22               responsible because it involves conduct engaged in by another
23               person that is conduct for which the other person would (but for
24               section 27) be criminally responsible (the related controlled
25               conduct).
26         (2)   Despite any other written law of this jurisdiction, a person who
27               engages in ancillary conduct that is an offence (whether or not
28               the person is a participant in a controlled operation) is not
29               criminally responsible for the offence if, at the time the person
30               engaged in the ancillary conduct --
31                 (a) the person believed that the related controlled conduct
32                       was being engaged in, or would be engaged in, by a
33                       participant in an authorised operation; and

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1                 (b)    the person was a participant in, or was otherwise
2                        authorised to know about, the operation.

3       Subdivision 2 -- Compensation and notification of third parties

4    32.         Compensation for property loss or damage
5          (1)   If a person suffers loss of or damage to property as a direct
6                result of an authorised operation, the State is liable to pay to the
7                person compensation as agreed between the State and the person
8                or, in default of agreement, as determined by action against the
9                State in a court of competent jurisdiction.
10         (2)   Subsection (1) does not apply if --
11                (a) the person suffered the loss or damage in the course of,
12                      or as a direct result of, engaging in any criminal activity
13                      (other than criminal activity that is controlled conduct);
14                      or
15                (b) the person was a participant involved in the authorised
16                      operation at the time of suffering the loss or damage.

17   33.         Notification requirements
18         (1)   If any loss of or damage to property occurs in the course of or as
19               a direct result of an authorised operation (other than property of
20               the State that is under the management or control of a
21               participating law enforcement officer), the principal law
22               enforcement officer for the operation must report the loss or
23               damage to the chief officer as soon as practicable.
24         (2)   The chief officer must take all reasonable steps to notify the
25               owner of the property of the loss or damage.
26         (3)   The chief officer is not required to notify the owner of property
27               under this section until the chief officer is satisfied that
28               notification would not --
29                 (a) compromise or hinder the authorised operation; or
30                (b) compromise the identity of a participant in the
31                       authorised operation; or

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1           (c)   endanger the life or safety of any person; or
2           (d)   prejudice any legal proceedings; or
3           (e)   otherwise be contrary to the public interest.

4                  Subdivision 3 -- Mutual recognition

5    34.   Mutual recognition of corresponding authorities
6          The following provisions apply, with any necessary changes, to
7          a corresponding authority under a corresponding law, and to a
8          corresponding authorised operation under that law, as if the
9          corresponding authority were an authority given under
10         section 11 --
11           (a) section 23 (Effect of authorities);
12           (b) section 24 (Defect in authority);
13           (c) section 27 (Protection from criminal responsibility for
14                 controlled conduct during authorised operations);
15           (d) section 28 (Indemnification of participants against civil
16                 liability);
17           (e) section 29 (Effect of sections 27 and 28 on other laws
18                 relating to criminal investigation);
19            (f) section 30 (Effect of being unaware of variation or
20                 cancellation of authority);
21           (g) section 31 (Protection from criminal responsibility for
22                 certain ancillary conduct).




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1                   Division 4 -- Compliance and monitoring
2    Subdivision 1 -- Restrictions on use, communication and publication
3                              of information

4    35.         Disclosure of operational information
5          (1)   In this section --
6                operational information means any information relating to a
7                controlled operation for which an authority is or was in force or
8                a corresponding authorised operation.
9          (2)   A person who has access, or has had access, to operational
10               information must not disclose the information except --
11                 (a) in connection with the administration or execution of
12                       this Part or a corresponding law; or
13                 (b) for the purposes of any legal proceeding arising out of or
14                       otherwise related to this Part or a corresponding law or
15                       of any report of any such proceedings; or
16                 (c) for the purpose of reporting to an appropriate authority
17                       any criminal activity that is outside the scope of the
18                       authority granted in respect of the authorised operation;
19                       or
20                (ca) for the purpose of seeking legal advice; or
21                (cb) to a government agency for the purposes of a law
22                       enforcement operation conducted by that agency or for
23                       intelligence-gathering purposes; or
24                 (d) in accordance with any requirement imposed by law.
25               Penalty: imprisonment for 10 years.
26               Summary conviction penalty: a fine of $24 000 or imprisonment
27                    for 2 years.
28         (3)   An offence against subsection (2) is an indictable offence.




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1                  Subdivision 2 -- Reporting and record-keeping

2    36.         Principal law enforcement officers' reports
3          (1)   Within 2 months after the completion of an authorised
4                operation, the principal law enforcement officer for the
5                operation must make a report in accordance with this section to
6                the chief officer of the law enforcement agency.
7          (2)   The report must include all of the following details --
8                 (a) the dates and times when the authorised operation began
9                       and was completed;
10                (b) whether the operation was a cross-border controlled
11                      operation or a local controlled operation;
12                (c) the nature of the controlled conduct engaged in for the
13                      purposes of the operation;
14                (d) details of the outcome of the operation;
15                (e) if the operation involved illicit goods, a statement (to the
16                      extent known) of --
17                        (i) the nature and quantity of the illicit goods; and
18                       (ii) the route through which the illicit goods passed
19                              in the course of the operation;
20                 (f) details of any loss of or serious damage to property, or
21                      any personal injuries, occurring in the course of or as a
22                      direct result of the operation;
23                (g) details (to the extent known) of any loss of or serious
24                      damage to property, or any personal injuries, occurring
25                      as an indirect result of the operation;
26                (h) information as to whether --
27                        (i) in the course of the operation, any participant
28                              engaged in unlawful conduct (other than
29                              controlled conduct that the participant was
30                              authorised to engage in for the purposes of the
31                              operation); and


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1                         (ii)   any unlawful conduct (other than controlled
2                                conduct) was engaged in during the operation;
3                                and
4                        (iii)   any person is, because of section 31, not
5                                criminally responsible for ancillary conduct (as
6                                defined in that section); and
7                        (iv)    any variations were made to an authority for the
8                                operation; and
9                         (v)    any of those variations were to extend the period
10                               of validity of the authority; and
11                       (vi)    any retrospective authority was granted in
12                               respect of the operation; and
13                      (vii)    any urgent authority was granted in respect of the
14                               operation; and
15                      (viii)   any conditions of an authority for the operation
16                               were breached.

17   37.         Chief officers' reports
18         (1)   As soon as practicable after 30 June and 31 December in each
19               year, the chief officer of each law enforcement agency must
20               submit a report to the Corruption and Crime Commission setting
21               out the details required by subsection (2) in relation to
22               controlled operations conducted on behalf of the agency during
23               the previous 6 months.
24         (2)   The report must include all of the following details --
25                (a) the number of formal authorities that have been granted
26                      or varied by the authorising officer for the agency, and
27                      the number of formal applications for the granting or
28                      variation of authorities that have been refused by the
29                      authorising officer for the agency, during the period to
30                      which the report relates;
31                (b) the number of --
32                        (i) urgent authorities that have been granted by the
33                              authorising officer for the agency; and

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1                   (ii)   urgent variations of authorities made by the
2                          authorising officer for the agency; and
3                   (iii) urgent applications for authorities or urgent
4                          variations of authorities that have been refused
5                          by the authorising officer for the agency,
6                  during the period to which the report relates;
7           (c)    the nature of the criminal activities against which the
8                  authorised operations were directed;
9           (d)    the nature of the controlled conduct engaged in for the
10                 purposes of the authorised operations;
11          (e)    if any of the authorised operations involved illicit goods,
12                 a statement (to the extent known) of --
13                    (i) the nature and quantity of the illicit goods; and
14                   (ii) the route through which the illicit goods passed
15                         in the course of the operations;
16           (f)   details of any loss of or serious damage to property, or
17                 any personal injuries, occurring in the course of or as a
18                 direct result of the authorised operations;
19          (g)    the number of authorities cancelled by the authorising
20                 officer for the agency, or that have expired during the
21                 period to which the report relates;
22          (h)    any seizure, arrest and prosecution arising from the
23                 authorised operations.
24   (3)   The Corruption and Crime Commission may require the chief
25         officer to furnish additional information in relation to any
26         authorised operation to which a report relates.
27   (4)   The details mentioned in subsection (2) must be classified into
28         cross-border controlled operations and local controlled
29         operations.
30   (5)   The report must not disclose any information that identifies any
31         suspect or a participant in an authorised operation or that is
32         likely to lead to such a person or participant being identified.


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1          (6)   Nothing in this section requires particulars of an authorised
2                operation to be included in a report for a period of 6 months if
3                the operation had not been completed during that period, but the
4                particulars must instead be included in the report for the period
5                of 6 months in which the operation is completed.

6    38.         Annual report by Corruption and Crime Commission
7          (1)   The Corruption and Crime Commission must, as soon as
8                practicable after 30 June in each year, prepare a report of the
9                work and activities of the law enforcement agencies under this
10               Part for the preceding 12 months and give a copy of the report
11               to the Minister and to the chief officer of each law enforcement
12               agency to which the report relates.
13         (2)   The chief officer must advise the Minister of any information in
14               the report that, in the chief officer's opinion, should be excluded
15               from the report before the report is laid before each House of
16               Parliament because the information, if made public, could
17               reasonably be expected to --
18                 (a) endanger a person's safety; or
19                 (b) prejudice an investigation or prosecution; or
20                 (c) compromise any law enforcement agency's operational
21                       activities or methodologies.
22         (3)   The Minister must --
23                (a) exclude information from the report if satisfied on the
24                     advice of the chief officer of any of the grounds set out
25                     in subsection (2); and
26                (b) insert a statement to the effect that information has been
27                     excluded from the report under paragraph (a).
28         (4)   The Minister is to cause a copy of the report to be laid before
29               each House of Parliament within 15 sitting days from the day on
30               which the report is received by the Minister.
31         (5)   The report must include, for each law enforcement agency
32               concerned, comments on the comprehensiveness and adequacy

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1                of the reports that were provided to the Corruption and Crime
2                Commission by the chief officer of the law enforcement agency.
3          (6)   The report must not disclose any information that identifies any
4                suspect or a participant in an authorised operation, or that is
5                likely to lead to such a person or participant being identified.
6          (7)   Nothing in this section requires particulars of an authorised
7                operation to be included in a report for a year if the operation
8                had not been completed as at 30 June in that year, but the
9                particulars must instead be included in the report for the year in
10               which the operation is completed.

11   39.         Keeping documents connected with authorised operations
12               The chief officer of a law enforcement agency must cause all of
13               the following to be kept --
14                 (a) each application made by a law enforcement officer of
15                       the agency;
16                 (b) each authority granted to a law enforcement officer of
17                       the agency;
18                 (c) each variation application made by a law enforcement
19                       officer of the agency;
20                 (d) each variation of authority granted or made by the
21                       authorising officer for the agency;
22                 (e) each order cancelling an authority granted to a law
23                       enforcement officer of the agency;
24                  (f) each retrospective authority granted under section 25
25                       and details of the application and authority to which the
26                       retrospective authority relates;
27                 (g) each report of a principal law enforcement officer of the
28                       agency under section 33(1) or 36.




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1    40.         General register
2          (1)   The chief officer of a law enforcement agency must cause a
3                general register to be kept.
4          (2)   The general register is to specify --
5                 (a) for each application under this Part made by a law
6                       enforcement officer of the agency (including an
7                       application for variation of authority) --
8                          (i) the date of the application; and
9                         (ii) whether the application was formal or urgent;
10                              and
11                       (iii) whether the application was made for a
12                              cross-border controlled operation or a local
13                              controlled operation; and
14                       (iv) whether the application was for a retrospective
15                              authority under section 25; and
16                        (v) whether the application was granted, refused or
17                              withdrawn; and
18                       (vi) if the application was refused or withdrawn, the
19                              date and time of the refusal or withdrawal;
20                      and
21                (b) for each authority under this Part granted to a law
22                      enforcement officer of the agency --
23                         (i) the date and time when the authority was
24                              granted; and
25                        (ii) whether the authority was formal or urgent; and
26                       (iii) whether the authority was granted for a
27                              cross-border controlled operation or a local
28                              controlled operation; and
29                       (iv) whether the authority was a retrospective
30                              authority granted under section 25; and
31                        (v) the name, and rank or position, of the person
32                              who granted the authority; and

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1           (vi)    each relevant offence in respect of which
2                   controlled conduct under the authority was to be
3                   engaged in; and
4           (vii)   the period of validity of the authority; and
5          (viii)   if the authority was cancelled, the date and time
6                   of cancellation; and
7           (ix)    the date and time when the authorised operation
8                   began and the date of completion of the
9                   operation; and
10           (x)    the date on which the principal law enforcement
11                  officer for the operation made a report on the
12                  operation under section 36; and
13          (xi)    if the authorised operation involved illicit goods,
14                  to the extent known --
15                       (I) the nature and quantity of the illicit
16                            goods; and
17                      (II) the route through which the illicit goods
18                            passed in the course of the operation;
19                  and
20         (xii)    details of any loss of or damage to property, or
21                  any personal injuries, occurring in the course of
22                  or as a direct result of the operation;
23         and
24   (c)   for each variation of authority under this Part --
25            (i) the date and time when the variation was made;
26                and
27           (ii) whether the variation was formal or urgent; and
28          (iii) the name, and rank or position, of the person
29                who made the variation.




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1                            Subdivision 3 -- Inspections

2    41.         Inspection of records by Corruption and Crime Commission
3          (1)   The Corruption and Crime Commission must, from time to time
4                and at least once every 12 months, inspect the records of a law
5                enforcement agency to determine the extent of compliance with
6                this Part by the agency and law enforcement officers of the
7                agency.
8          (2)   For the purposes of an inspection under this section, the
9                Corruption and Crime Commission --
10                (a) after notifying the chief officer of the law enforcement
11                       agency, may enter at any reasonable time premises
12                       occupied by the agency; and
13                (b) is entitled to have full and free access at all reasonable
14                       times to all records of the law enforcement agency that
15                       are relevant to the inspection; and
16                (c) may require a person employed or engaged in the law
17                       enforcement agency to give the Corruption and Crime
18                       Commission any information that the Corruption and
19                       Crime Commission considers necessary, being
20                       information that is in the person's possession, or to
21                       which the person has access, and that is relevant to the
22                       inspection.
23    (2A)       The Corruption and Crime Commission may delegate to an
24               officer of the Commission (as defined in the Corruption and
25               Crime Commission Act 2003 section 3(1)) a power or duty of
26               the Corruption and Crime Commission under this section and,
27               for that purpose, the Corruption and Crime Commission
28               Act 2003 section 185(3) to (6) apply as if the delegation were a
29               delegation under section 185.
30         (3)   The chief officer must ensure that persons employed or engaged
31               in the law enforcement agency give the Corruption and Crime
32               Commission any assistance the Corruption and Crime
33               Commission reasonably requires to enable the Corruption and


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1                Crime Commission to perform or exercise functions under this
2                section.
3          (4)   For the purposes of this section a record of, or a person
4                employed or engaged in, the department of the Public Service
5                that principally assists the Minister in the administration of the
6                Police Act 1892 is to be taken to be a record of, or a person
7                employed or engaged in, the Police Force.

8                            Division 5 -- Miscellaneous
9    42.         Evidence of authorities
10         (1)   A document purporting to be an authority granted under
11               section 11 --
12                 (a) is admissible in any legal proceedings; and
13                 (b) in the absence of evidence to the contrary, is proof in
14                       any proceedings (not being criminal or disciplinary
15                       proceedings against a law enforcement officer) that the
16                       person granting the authority was satisfied of the facts of
17                       which he or she was required to be satisfied before
18                       granting the authority.
19         (2)   A document purporting to be an authority within the meaning of
20               that term in a corresponding law granted under a provision of
21               the corresponding law that corresponds to section 11 --
22                 (a) is admissible in any legal proceedings in this
23                       jurisdiction; and
24                 (b) in the absence of evidence to the contrary, is proof in
25                       any proceedings (not being criminal or disciplinary
26                       proceedings against a law enforcement officer) that the
27                       person who granted the authority was satisfied of the
28                       facts of which he or she was required to be satisfied
29                       under the corresponding law before granting the
30                       authority.




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1    43.         Delegation
2          (1)   In this section --
3                senior officer means --
4                  (a) in relation to an authorising officer or chief officer who
5                         is the Commissioner of Police -- a police officer of or
6                         above the rank of Commander; or
7                  (b) in relation to an authorising officer or chief officer who
8                         is the Chief Executive Officer of the Australian Crime
9                         Commission --
10                           (i) an SES employee as defined in the Australian
11                                Crime Commission Act 2002 (Commonwealth)
12                                section 4(1); or
13                          (ii) a person holding a prescribed office in the
14                                Australian Crime Commission;
15                        or
16                 (c) in relation to a chief officer who is the chief executive
17                        officer of the fisheries department -- a fisheries officer
18                        holding a prescribed office in the department.
19         (2)   Except as provided by this section, and despite any other written
20               law to the contrary, the functions of an authorising officer or
21               chief officer under this Part cannot be delegated to any other
22               person.
23         (3)   Except as provided in section 25(8), the authorising officer for,
24               or chief officer of, a law enforcement agency may delegate to a
25               senior officer any of his or her functions under this Part relating
26               to the authorisation of controlled operations (including the
27               variation and cancellation of authorities and the giving of
28               notification under section 33(2)).




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1                  Part 3 -- Assumed identities
2                         Division 1 -- General
3    44.   Terms used
4          In this Part, unless the contrary intention appears --
5          acquire an assumed identity, means acquire evidence of the
6          identity and includes taking steps towards acquiring evidence of
7          the identity;
8          authorised civilian means a person (other than a law
9          enforcement officer) who is authorised under an authority to
10         acquire or use an assumed identity;
11         authorised officer means a law enforcement officer who is
12         authorised under an authority to acquire or use an assumed
13         identity;
14         authorised person means --
15           (a) an authorised civilian; or
16           (b) an authorised officer;
17         authority means an authority granted under section 48 to
18         acquire or use an assumed identity, including the authority as
19         varied under section 51;
20         chief officer, of an issuing agency, means the chief executive
21         officer (however described) of the agency;
22         corresponding authority means --
23           (a) an authority under a corresponding law to acquire or use
24                  an assumed identity in this jurisdiction; or
25           (b) an authority under a corresponding law to request the
26                  production of evidence of an assumed identity in this
27                  jurisdiction;
28         corresponding law means a law of another jurisdiction that
29         corresponds to this Part, and includes a prescribed law of
30         another jurisdiction;
31         doing a thing includes failing to do the thing;

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1              evidence, of identity, means a document or other thing (such as
2              a driver's licence, birth certificate, credit card or identity card)
3              that evidences, indicates or supports, or can be used to evidence,
4              indicate or support, a person's identity or any aspect of a
5              person's identity;
6              formal authority has the meaning given in section 49(1)(a);
7              government issuing agency, in relation to an authority, means a
8              government agency named in the authority that issues evidence
9              of identity;
10             issuing agency means --
11               (a) a government issuing agency; or
12               (b) a non-government issuing agency;
13             non-government issuing agency, in relation to an authority,
14             means a person, body or entity (other than a government issuing
15             agency) named in the authority that issues evidence of identity;
16             officer, of an issuing agency, includes a person employed or
17             engaged in the agency;
18             participating jurisdiction means a jurisdiction in which a
19             corresponding law is in force;
20             Register has the meaning given in the Births, Deaths and
21             Marriages Registration Act 1998;
22             Registrar means the Registrar of Births, Deaths and Marriages
23             referred to in the Births, Deaths and Marriages Registration
24             Act 1998 section 5;
25             supervisor, of an authorised civilian, means the law
26             enforcement officer who supervises or is to supervise the
27             acquisition or use of an assumed identity by the authorised
28             civilian;
29             use an assumed identity, includes representing (whether
30             expressly or impliedly, or by saying or doing something) the
31             identity to be real when it is not.




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1    45.         Non-application of certain Acts
2                The following Acts do not apply to activities or records under
3                this Part --
4                  (a) the State Records Act 2000;
5                  (b) the Freedom of Information Act 1992, despite
6                        section 8(1) of that Act.

7    46.         Relationship to other laws relating to assumed identities
8                This Part does not affect the operation of any other written law
9                of this jurisdiction that authorises the acquisition or use of an
10               assumed identity.

11                 Division 2 -- Authority for assumed identity
12   47.         Application for authority to acquire or use assumed identity
13         (1)   A law enforcement officer of a law enforcement agency may
14               apply to the authorising officer for the agency for an authority
15               for the law enforcement officer or any other person to do either
16               or both of the following --
17                 (a) acquire an assumed identity;
18                 (b) use an assumed identity.
19         (2)   A separate application must be made in respect of each assumed
20               identity to be acquired or used.
21         (3)   An application may be made --
22                (a) in writing (a formal application); or
23                (b) in relation to the use of an assumed identity but not the
24                      acquisition of an assumed identity -- orally (an urgent
25                      application), if the applicant has reason to believe that
26                      the delay caused by making a formal application may
27                      affect the success of a law enforcement operation.
28         (4)   A formal application must be in a physical form, signed by the
29               applicant.


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1       (5)    However if it is impracticable in the circumstances for a
2              physical document to be delivered to the authorising officer, a
3              formal application may take the form of --
4                (a) a fax; or
5                (b) an email or other electronic document, in which case the
6                     document need not be signed.
7       (6)    An urgent application may be made in person, by telephone or
8              any other electronic means.
9       (7)    An application must provide all of the following information --
10              (a) the name of the applicant;
11              (b) the name of the person (or if there is more than one,
12                    each person) to be authorised to acquire or use an
13                    assumed identity (if not the applicant);
14              (c) if the person referred to in paragraph (b) is not a law
15                    enforcement officer, the name, and rank or position, of
16                    the person proposed to be appointed as supervisor and
17                    an explanation of why it is necessary for a person who is
18                    not a law enforcement officer to acquire or use the
19                    assumed identity;
20              (d) details of the proposed assumed identity;
21              (e) reasons for the need to acquire or use an assumed
22                    identity;
23               (f) details of the investigation or intelligence-gathering
24                    exercise in which the assumed identity will be used (to
25                    the extent known);
26              (g) details of any issuing agencies and the types of evidence
27                    of identity to be issued by them;
28              (h) details of any application to be made for an order under
29                    section 54 in respect of the assumed identity.
30      (8)    The authorising officer may require the applicant to furnish such
31             additional information concerning the application as is



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1                necessary for the authorising officer's proper consideration of
2                the application.
3          (9)   As soon as practicable after making an urgent application, the
4                applicant must make a record in writing of the application and
5                give a copy of it to the authorising officer.

6    48.         Determination of application
7          (1)   After considering an application for an authority to acquire or
8                use an assumed identity, and any additional information
9                furnished under section 47(8), the authorising officer --
10                 (a) may grant an authority to acquire or use the assumed
11                       identity, either unconditionally or subject to conditions;
12                       or
13                 (b) may refuse the application.
14         (2)   An authority to acquire or use an assumed identity must not be
15               granted unless the authorising officer is satisfied on reasonable
16               grounds --
17                 (a) that the assumed identity is necessary for one or more of
18                      the following purposes --
19                         (i) investigation of, or intelligence-gathering in
20                              relation to, criminal activity (whether a particular
21                              criminal activity or criminal activity generally);
22                        (ii) the training of persons for the purposes
23                              mentioned in subparagraph (i);
24                       (iii) any administrative function in support of a
25                              purpose mentioned in subparagraph (i) or (ii);
26                      and
27                 (b) that the risk of abuse of the assumed identity by the
28                      authorised person is minimal; and
29                 (c) if the application is for authorisation of an assumed
30                      identity for a person who is not a law enforcement
31                      officer, that it would be impossible or impracticable in
32                      the circumstances for a law enforcement officer to

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1                        acquire or use the assumed identity for the purpose
2                        sought.
3          (3)   If an authority is granted for an authorised civilian, the chief
4                officer must appoint a law enforcement officer of the law
5                enforcement agency to supervise the acquisition or use of the
6                assumed identity by the authorised civilian.
7          (4)   The law enforcement officer appointed as supervisor must be --
8                 (a) in relation to the Police Force -- a police officer of or
9                       above the rank of sergeant;
10                (b) in relation to the Australian Crime Commission -- a
11                      person of or above the rank of senior investigator;
12                (c) in relation to the fisheries department -- a person
13                      holding a prescribed office.
14         (5)   An authority may also authorise any one or more of the
15               following --
16                 (a) an application for an order for an entry in the Register
17                      under section 54 or in a register of births, deaths or
18                      marriages (however described) under a corresponding
19                      law;
20                 (b) a request under section 58 or 69;
21                 (c) the use of an assumed identity in a participating
22                      jurisdiction.
23         (6)   A separate authority is required for each assumed identity.

24   49.         Form of authority
25         (1)   An authority must be --
26                (a) in writing (a formal authority); or
27                (b) orally (an urgent authority), if the authorising officer is
28                      satisfied that the delay caused by granting a formal
29                      authority may affect the success of a law enforcement
30                      operation.



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1    (2)   A formal authority must be in a physical form, signed by the
2          authorising officer.
3    (3)   However if it is impracticable in the circumstances for a
4          physical document to be delivered to the applicant, a formal
5          authority may take the form of --
6            (a) a fax; or
7            (b) an email or other electronic document, in which case the
8                  document need not be signed.
9    (4)   An urgent authority may be granted in person, by telephone or
10         any other electronic means.
11   (5)   An authority, whether formal or urgent, must state all of the
12         following --
13           (a) the name of the person granting the authority;
14           (b) the date of the authority;
15           (c) whether the authority is a formal authority or an urgent
16                authority;
17           (d) if the authority is an urgent authority, the period of
18                validity of the authority, being a period not exceeding
19                7 days;
20           (e) details of the assumed identity authorised;
21            (f) details of any evidence of the assumed identity that may
22                be acquired under the authority;
23           (g) the conditions (if any) to which the authority is subject;
24           (h) why the authority is granted;
25            (i) if the authority relates to an authorised officer, the name
26                of the officer (or if there is more than one, the name of
27                each officer);
28            (j) if the authority relates to an authorised civilian --
29                   (i) the name of the authorised civilian; and
30                  (ii) the name of his or her supervisor under the
31                        authority; and


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     Division 2      Authority for assumed identity
     s. 50



1                        (iii)   in the case of a formal authority, the period of
2                                validity of the authority, being a period not
3                                exceeding 3 months.
4          (6)   The authority must also state all of the following --
5                 (a) each issuing agency to which a request may be made
6                       under section 58 or 69;
7                 (b) whether it authorises an application for an order for an
8                       entry in the Register under section 54 or in a register of
9                       births, deaths or marriages (however described) under a
10                      corresponding law;
11                (c) each participating jurisdiction in which an assumed
12                      identity may be used.
13         (7)   The authorising officer must, as soon as practicable after
14               granting an urgent authority, make a record in writing of the
15               particulars referred to in subsection (5) relating to the authority.

16   50.         Duration of authority
17         (1)   A formal authority for an authorised officer remains in force
18               until cancelled under section 52.
19         (2)   A formal authority for an authorised civilian remains in force
20               until the end of the period of validity specified in it in
21               accordance with section 49(5)(j)(iii), unless the authority is
22               cancelled sooner under section 52.
23         (3)   A fresh formal authority may be issued to an authorised civilian
24               before or after the end of the period of validity specified in the
25               initial authority.
26         (4)   An urgent authority remains in force until the end of the period
27               of validity specified in it in accordance with section 49(5)(d),
28               unless the authority is cancelled sooner under section 52.

29   51.         Variation of authority
30         (1)   The authorising officer who grants an authority may vary the
31               authority at any time.

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                                Authority for assumed identity   Division 2
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1    (2)   However, a variation cannot be made that has the effect of
2          extending the period of validity of --
3            (a) a formal authority for an authorised civilian; or
4            (b) an urgent authority.
5    (3)   The authorising officer must give notice of the variation to --
6           (a) the authorised person to whom it relates; and
7           (b) if the authorised person is an authorised civilian, the
8                 authorised person's supervisor.
9    (4)   The notice must be given --
10          (a) in writing (a formal variation of authority); or
11          (b) orally (an urgent variation of authority), if the
12                authorising officer is satisfied that the delay caused by
13                making a formal variation of authority may affect the
14                success of a law enforcement operation or is otherwise
15                urgently required.
16   (5)   A formal variation of authority must be in a physical form,
17         signed by the authorising officer.
18   (6)   However if it is impracticable in the circumstances for a
19         physical document to be given to the authorised person or the
20         authorised person's supervisor (as the case requires), a formal
21         variation of authority may take the form of --
22           (a) a fax; or
23           (b) an email or other electronic document, in which case the
24                 document need not be signed.
25   (7)   An urgent variation of authority may be made in person, by
26         telephone or any other electronic means.
27   (8)   A variation of authority takes effect --
28          (a) in the case of a formal variation of authority in which a
29                date of effect is stated -- on the day stated; or
30          (b) in any other case -- when it is given to the authorised
31                person.

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     Division 2      Authority for assumed identity
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1          (9)   A variation of authority must --
2                 (a) identify the authorised person to whom the authority
3                       relates and, if the authorised person is an authorised
4                       civilian, the authorised person's supervisor; and
5                 (b) state whether it is a formal variation of authority or an
6                       urgent variation of authority; and
7                 (c) describe the variation; and
8                 (d) specify the reasons why the variation of authority is or
9                       was made; and
10                (e) state the date and time when the variation of authority is
11                      or was made.
12     (10)      The authorising officer must, as soon as practicable after
13               making an urgent variation of authority, make a record in
14               writing of the particulars referred to in subsection (9) relating to
15               the variation of authority.

16   52.         Cancellation of authority
17         (1)   The authorising officer who grants an authority must cancel the
18               authority if the authorising officer is satisfied, on a review under
19               section 53 or otherwise, that use of the assumed identity is no
20               longer necessary.
21         (2)   The authorising officer must give notice of the cancellation
22               to --
23                 (a) the authorised person to whom it relates; and
24                 (b) if the authorised person is an authorised civilian, the
25                      authorised person's supervisor.
26         (3)   The notice must be given --
27                (a) in writing (a formal cancellation of authority); or
28                (b) orally (an urgent cancellation of authority), if the
29                      authorising officer is satisfied that the delay caused by
30                      making a formal cancellation of authority may affect the
31                      success of a law enforcement operation or is otherwise
32                      urgently required.

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                                 Authority for assumed identity   Division 2
                                                                         s. 52



1    (4)   A formal cancellation of authority must be in a physical form,
2          signed by the authorising officer.
3    (5)   However if it is impracticable in the circumstances for a
4          physical document to be given to the authorised person or the
5          authorised person's supervisor (as the case requires), a formal
6          cancellation of authority may take the form of --
7            (a) a fax; or
8            (b) an email or other electronic document, in which case the
9                  document need not be signed.
10   (6)   An urgent cancellation of authority may be made in person, by
11         telephone or any other electronic means.
12   (7)   A cancellation of authority takes effect --
13          (a) in the case of a formal cancellation of authority in which
14                a date of effect is stated -- on the day stated; or
15          (b) in any other case -- when it is given to the authorised
16                person.
17   (8)   A cancellation of authority must --
18          (a) identify the authorised person to whom the authority
19                relates and, if the authorised person is an authorised
20                civilian, the authorised person's supervisor; and
21          (b) state whether it is a formal cancellation of authority or
22                an urgent cancellation of authority; and
23          (c) state the date and time when the cancellation of
24                authority is or was made.
25   (9)   The authorising officer must, as soon as practicable after
26         making an urgent cancellation of authority, make a record in
27         writing of the particulars referred to in subsection (8) relating to
28         the cancellation of authority.




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     Part 3          Assumed identities
     Division 3      Evidence of assumed identity
     s. 53



1    53.         Yearly review of formal authority
2          (1)   The authorising officer must periodically review each formal
3                authority granted by the authorising officer or a delegate of the
4                authorising officer under this Part.
5          (2)   A review of a formal authority under this section is to be
6                conducted at least once every 12 months.
7          (3)   The purpose of a review is to determine whether use of the
8                assumed identity under the formal authority is still necessary.
9          (4)   If the authorising officer is satisfied on a review that use of the
10               assumed identity under the formal authority is no longer
11               necessary, he or she must cancel the authority under section 52.
12         (5)   If the authorising officer is satisfied on a review that use of the
13               assumed identity under the formal authority is still necessary, he
14               or she must record his or her opinion, and the reasons for it, in
15               writing.

16                  Division 3 -- Evidence of assumed identity
17   54.         Making records of births, deaths or marriages
18         (1)   The Supreme Court may order the Registrar to do one or more
19               of the following --
20                 (a) make an entry in the Register;
21                 (b) issue a certificate of birth, death or marriage in relation
22                       to the acquisition of an assumed identity under an
23                       authority or corresponding authority.
24         (2)   The Registrar may create such other records as the Registrar
25               thinks necessary to support the entry or certificate made or
26               issued in accordance with the order in relation to the acquisition
27               of an assumed identity under an authority or corresponding
28               authority.




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                                       Evidence of assumed identity     Division 3
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1          (3)   The Court may make the order only --
2                 (a) on application by --
3                         (i) the chief officer of a law enforcement agency; or
4                        (ii) the chief officer (however described) of a law
5                              enforcement agency under a corresponding law;
6                              or
7                       (iii) the chief officer of an intelligence agency (within
8                              the meaning of paragraph (a) of the definition of
9                              chief officer in the Crimes Act 1914
10                             (Commonwealth) section 15K);
11                     and
12                (b) if satisfied that the order is justified, having regard to the
13                     nature of the activities undertaken or to be undertaken
14                     by the person under the authority or corresponding
15                     authority.
16         (4)   The application must be heard in closed court.
17         (5)   The Registrar must give effect to an order --
18                (a) within the period stated in the order; or
19                (b) if no period is stated in the order, within 28 days after
20                     the day on which the order is made.

21   55.         Cancellation of authority affecting records of births, deaths
22               or marriages
23         (1)   This section applies if --
24                (a) the authorising officer for a law enforcement agency
25                      cancels an authority for an assumed identity; and
26                (b) there is an entry in relation to that identity --
27                         (i) in the Register because of an order under
28                              section 54; or
29                        (ii) in a register of births, deaths or marriages in a
30                              participating jurisdiction because of an order
31                              under a corresponding law of the jurisdiction.

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     Part 3          Assumed identities
     Division 3      Evidence of assumed identity
     s. 56



1          (2)   If subsection (1)(b)(i) applies, the chief officer of the law
2                enforcement agency must apply for an order under section 56
3                within 28 days after the day on which the authority is cancelled.
4          (3)   If subsection (1)(b)(ii) applies, the chief officer of the law
5                enforcement agency must apply for an order under the
6                corresponding law to cancel the entry, within 28 days after the
7                day on which the authority is cancelled.

8    56.         Cancelling entries in Register
9          (1)   The Supreme Court may order the Registrar to cancel an entry
10               in the Register, and any supporting records, made under an
11               order under section 54.
12         (2)   The Court may make the order only on application by the chief
13               officer who applied for the order under section 54.
14         (3)   The application must be heard in closed court.
15         (4)   The Registrar must give effect to the order within 28 days after
16               the day on which the order is made.

17   57.         Restriction about access to application for entry in Register
18         (1)   In this section --
19               relevant proceeding means --
20                 (a) an application under section 54 or 56 for an order to
21                        make or cancel an entry in the Register; or
22                 (b) an order given under the application.
23         (2)   A person is not entitled to search information in the custody of
24               the Supreme Court in relation to a relevant proceeding unless
25               the Supreme Court otherwise orders in the interests of justice.

26   58.         Request for evidence of assumed identity
27         (1)   In this section --
28               evidence, of identity, means evidence similar to that ordinarily
29               produced or given by the issuing agency.

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                                                 Assumed identities          Part 3
                                       Evidence of assumed identity     Division 3
                                                                               s. 59



1          (2)   This section applies if the authorising officer for a law
2                enforcement agency grants an authority under section 48
3                authorising a request under this section.
4          (3)   The chief officer of the law enforcement agency may request
5                the chief officer of an issuing agency stated in the authority
6                to --
7                  (a) produce evidence of an assumed identity in accordance
8                        with the authority; and
9                  (b) give evidence of the assumed identity to the authorised
10                       person named in the authority or another person
11                       specified by the chief officer making the request.
12         (4)   The request must state a reasonable period for compliance with
13               the request.
14         (5)   A request must not be made under this section for an entry in
15               the Register or for the issue of a certificate of birth, death or
16               marriage.

17   59.         Government issuing agencies to comply with request
18         (1)   The chief officer of a government issuing agency who receives
19               a request under section 58 must comply with the request within
20               the reasonable period stated in the request.
21         (2)   The chief officer of a government issuing agency must create
22               such records, or make such alterations to existing records, as are
23               necessary to support evidence of the assumed identity produced
24               in response to the request.

25   60.         Non-government issuing agencies may comply with request
26         (1)   The chief officer of a non-government issuing agency who
27               receives a request under section 58 may comply with the
28               request.
29         (2)   The chief officer of a non-government issuing agency may
30               create such records, or make such alterations to existing records,


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     Part 3          Assumed identities
     Division 3      Evidence of assumed identity
     s. 61



1                as the chief officer thinks are necessary to support evidence of
2                the assumed identity produced in response to the request.

3    61.         Cancellation of evidence of assumed identity
4          (1)   In this section --
5                cancel includes delete or alter an entry in a record of
6                information.
7          (2)   This section applies if the chief officer of an issuing agency
8                complies with a request under section 58.
9          (3)   The chief officer who made the request may in writing direct the
10               chief officer of the issuing agency to cancel evidence produced
11               in response to the request and cancel any other records or
12               alterations made to support that evidence.
13         (4)   The direction must state a reasonable period for compliance
14               with the direction.
15         (5)   The chief officer of an issuing agency who receives a direction
16               under subsection (3) must comply with the direction within the
17               reasonable period stated in the direction.

18   62.         Protection from criminal liability -- officers of issuing
19               agencies
20               The chief officer, or an officer, of an issuing agency (whether
21               government or non-government) who does something that, apart
22               from this section, would be an offence is not criminally
23               responsible for the offence if the thing is done to comply with a
24               request under section 58 or a direction under section 61.

25   63.         Indemnity for issuing agencies and officers
26         (1)   This section applies if the chief officer of a law enforcement
27               agency makes a request under section 58 or gives a direction
28               under section 61 to the chief officer of an issuing agency,
29               whether government or non-government.



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                                                Assumed identities          Part 3
                                                 Effect of authority   Division 4
                                                                              s. 64



1          (2)   The chief officer of the law enforcement agency must indemnify
2                the issuing agency, or an officer of the issuing agency, for any
3                liability incurred by the issuing agency or officer (including
4                reasonable costs) if --
5                   (a) the liability is incurred because of something done by
6                         the issuing agency or officer to comply with the request
7                         or direction in the course of duty; and
8                  (b) any prescribed requirements have been met.

9                         Division 4 -- Effect of authority
10   64.         Assumed identity may be acquired and used
11         (1)   An authorised officer may acquire or use (or both) an assumed
12               identity if the acquisition or use (or both) are --
13                 (a) in accordance with an authority; and
14                 (b) in the course of duty.
15         (2)   An authorised civilian may acquire or use (or both) an assumed
16               identity if the acquisition or use (or both) are in accordance
17               with --
18                 (a) an authority; and
19                 (b) any direction by the person's supervisor under the
20                       authority.
21         (3)   An authority also authorises --
22                (a) the making (by the person to whom the authority applies
23                      or by any officer of the relevant law enforcement
24                      agency) of any false or misleading representation about
25                      the person, for the purposes of or in connection with the
26                      acquisition or use of the assumed identity by the person;
27                      and
28                (b) the use by the person of the assumed identity to obtain
29                      evidence of the identity.




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     Part 3          Assumed identities
     Division 4      Effect of authority
     s. 65



1    65.         Protection from criminal liability -- authorised persons
2                If an authorised person does something (whether in this
3                jurisdiction or elsewhere) that, apart from this section, would be
4                an offence, the person is not criminally responsible for the
5                offence if --
6                   (a) the thing is done in the course of acquiring or using an
7                        assumed identity in accordance with an authority; and
8                  (b) the thing is done --
9                           (i) in the case of an authorised officer, in the course
10                               of his or her duty; or
11                         (ii) in the case of an authorised civilian, in
12                               accordance with any direction by his or her
13                               supervisor under the authority;
14                       and
15                  (c) doing the thing would not be an offence if the assumed
16                       identity were the person's real identity.

17   66.         Indemnity for authorised persons
18         (1)   This section applies if the authorising officer for a law
19               enforcement agency grants an authority.
20         (2)   The chief officer of the law enforcement agency must indemnify
21               the authorised person under the authority for any liability
22               incurred by the person (including reasonable costs) because of
23               something done by the person (whether in this jurisdiction or
24               elsewhere) if --
25                 (a) the thing is done in the course of acquiring or using an
26                       assumed identity in accordance with the authority; and
27                 (b) the thing is done --
28                         (i) in the case of an authorised officer, in the course
29                              of his or her duty; or




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                                                  Effect of authority   Division 4
                                                                               s. 67



1                         (ii)   in the case of an authorised civilian, in
2                                accordance with any direction by his or her
3                                supervisor under the authority;
4                        and
5                  (c)   any prescribed requirements have been met.

6    67.         Particular qualifications
7          (1)   Sections 65 and 66 do not apply to anything done by an
8                authorised person if --
9                  (a) a particular qualification is needed to do the thing; and
10                 (b) the person does not have that qualification.
11         (2)   Subsection (1) applies whether or not the person has acquired,
12               as evidence of an assumed identity, a document that indicates
13               that he or she has that qualification.

14   68.         Effect of being unaware of variation or cancellation of
15               authority
16         (1)   If an authority has been varied in a way that limits its scope, this
17               Division continues to apply to the authorised person to whom it
18               relates as if it had not been varied in that way, for as long as the
19               person --
20                  (a) is unaware of the variation; and
21                 (b) has taken reasonable measures to ensure the person is
22                       aware of any variation.
23         (2)   If an authority has been cancelled, this Division continues to
24               apply to the authorised person to whom it related as if it had not
25               been cancelled, for as long as the person --
26                  (a) is unaware of the cancellation; and
27                 (b) has taken reasonable measures to ensure the person is
28                       aware of any cancellation.




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     Criminal Investigation (Covert Powers) Bill 2011
     Part 3          Assumed identities
     Division 5      Mutual recognition under corresponding laws
     s. 69



1      Division 5 -- Mutual recognition under corresponding laws
2    69.         Requests to participating jurisdiction for evidence of
3                assumed identity
4          (1)   This section applies if the authorising officer for a law
5                enforcement agency grants an authority under section 48
6                authorising a request under this section.
7          (2)   The chief officer of the law enforcement agency may request
8                the chief officer (however described) of an issuing agency of a
9                participating jurisdiction stated in the authority to --
10                 (a) produce evidence of the assumed identity in accordance
11                       with the authority; and
12                 (b) give evidence of the assumed identity to the authorised
13                       person named in the authority or another person
14                       specified by the chief officer making the request; and
15                 (c) create or alter such other records as the chief officer of
16                       the issuing agency thinks necessary to support the
17                       evidence of the assumed identity produced in response
18                       to the request.
19         (3)   The request must state a reasonable period for compliance with
20               the request.

21   70.         Requests from participating jurisdiction for evidence of
22               assumed identity
23         (1)   This section applies if --
24                (a) a corresponding authority authorises a request for --
25                         (i) the production of evidence of an assumed
26                              identity in this jurisdiction; and
27                        (ii) the giving of evidence of the assumed identity to
28                              the authorised person named in the authority;
29                      and
30                (b) the request is made to the chief officer of an issuing
31                      agency of this jurisdiction; and

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                                                  Assumed identities         Part 3
                         Mutual recognition under corresponding laws    Division 5
                                                                               s. 71



1                  (c)   the request states a reasonable period for compliance
2                        with the request.
3          (2)   The chief officer of a government issuing agency who receives
4                the request must comply with the request within the reasonable
5                period stated in the request.
6          (3)   The chief officer of a non-government issuing agency who
7                receives the request may comply with the request.
8          (4)   The chief officer of an issuing agency may create or alter such
9                other records as the chief officer thinks necessary to support
10               evidence of the assumed identity produced in response to the
11               request.

12   71.         Directions from participating jurisdiction to cancel evidence
13               of assumed identity
14         (1)   In this section --
15               cancel includes delete or alter an entry in a record of
16               information.
17         (2)   This section applies if the chief officer of an issuing agency (the
18               issuing chief officer) who has produced evidence in response to
19               a request under section 70 is directed in writing to cancel the
20               evidence by the chief officer (however described) of the
21               relevant law enforcement agency of the participating
22               jurisdiction.
23         (3)   The issuing chief officer must, within any reasonable period
24               stated in the request, cancel --
25                 (a) the evidence; and
26                 (b) any other records or alterations made to support that
27                       evidence.




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     Part 3          Assumed identities
     Division 5      Mutual recognition under corresponding laws
     s. 72



1    72.         Indemnity for issuing agencies and officers
2          (1)   This section applies if the chief officer of a law enforcement
3                agency makes a request to the chief officer (however described)
4                of an issuing agency of a participating jurisdiction under
5                section 69.
6          (2)   The chief officer of the law enforcement agency must indemnify
7                the issuing agency, and any officer of the issuing agency, for
8                any liability incurred by the agency or officer (including
9                reasonable costs) if --
10                 (a) the liability is incurred because of something done
11                       (whether in this jurisdiction or elsewhere) by the agency
12                       or officer to comply with the request in the course of
13                       duty; and
14                 (b) any prescribed requirements have been met.

15   73.         Application of Division to authorities under corresponding
16               laws
17               The following provisions apply, with any necessary changes, to
18               anything done in this jurisdiction in relation to a corresponding
19               authority as if it were an authority granted under section 48 --
20                 (a) section 62 (Protection from criminal liability -- officers
21                       of issuing agencies);
22                 (b) section 64 (Assumed identity may be acquired and
23                       used);
24                 (c) section 65 (Protection from criminal liability --
25                       authorised persons);
26                 (d) section 67 (Particular qualifications);
27                 (e) section 68 (Effect of being unaware of variation or
28                       cancellation of authority);
29                  (f) section 74 (Misuse of assumed identity);
30                 (g) section 75 (Disclosing information about assumed
31                       identity).


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                                                Assumed identities          Part 3
                                        Compliance and monitoring      Division 6
                                                                              s. 74



1                   Division 6 -- Compliance and monitoring
2           Subdivision 1 -- Misuse of assumed identity and information

3    74.         Misuse of assumed identity
4          (1)   An authorised officer must not acquire evidence of, or use, an
5                assumed identity covered by the officer's authority except --
6                  (a) in accordance with his or her authority; and
7                  (b) in the course of duty.
8                Penalty: imprisonment for 2 years.
9          (2)   An authorised civilian must not acquire evidence of, or use, an
10               assumed identity covered by the civilian's authority except in
11               accordance with --
12                 (a) the civilian's authority; and
13                 (b) the directions of the civilian's supervisor under the
14                      authority.
15               Penalty: imprisonment for 2 years.

16   75.         Disclosing information about assumed identity
17         (1)   A person must not disclose any information that reveals, or is
18               likely to reveal, that an assumed identity that another person is
19               authorised to acquire or use under an authority or corresponding
20               authority is not the other person's real identity except --
21                 (a) in connection with the administration or execution of
22                        this Part or a corresponding law; or
23                 (b) for the purposes of any legal proceeding arising out of or
24                        otherwise related to this Part or a corresponding law or
25                        of any report of any such proceedings; or
26                 (c) to a government agency for the purposes of a law
27                        enforcement operation conducted by that agency; or
28                 (d) in accordance with any requirement imposed by law.
29               Penalty: imprisonment for 10 years.



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     Part 3          Assumed identities
     Division 6      Compliance and monitoring
     s. 76



1                Summary conviction penalty: a fine of $24 000 or imprisonment
2                   for 2 years.
3          (2)   An offence against subsection (1) is an indictable offence.

4                  Subdivision 2 -- Reporting and record-keeping

5    76.         Reports about authorities for assumed identities
6          (1)   As soon as practicable after the end of each financial year, the
7                chief officer of a law enforcement agency must submit a report
8                to the Minister that includes all of the following information for
9                the year --
10                 (a) the number of authorities granted during the year;
11                 (b) a general description of the activities undertaken by
12                       authorised persons when using assumed identities under
13                       this Part during the year;
14                 (c) the number of applications for authorities that were
15                       refused during the year;
16                 (d) a statement whether or not any fraud or other unlawful
17                       activity was identified by an audit under section 78
18                       during the year;
19                 (e) any other information relating to authorities and
20                       assumed identities and the administration of this Part
21                       that the Minister considers appropriate.
22         (2)   The chief officer must advise the Minister of any information in
23               the report that, in the chief officer's opinion, should be excluded
24               from the report before the report is laid before each House of
25               Parliament because the information, if made public, could
26               reasonably be expected to --
27                 (a) endanger a person's safety; or
28                 (b) prejudice an investigation or prosecution; or
29                 (c) compromise any law enforcement agency's operational
30                       activities or methodologies.



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                                                 Assumed identities          Part 3
                                         Compliance and monitoring      Division 6
                                                                               s. 77



1          (3)   The Minister must --
2                 (a) exclude information from the report if satisfied on the
3                      advice of the chief officer of any of the grounds set out
4                      in subsection (2); and
5                 (b) insert a statement to the effect that information has been
6                      excluded from the report under paragraph (a).
7          (4)   The Minister is to cause a copy of the report to be laid before
8                each House of Parliament within 15 sitting days from the day on
9                which the report is received by the Minister.

10   77.         Record-keeping
11         (1)   The chief officer of a law enforcement agency must cause
12               appropriate records to be kept about the operation of this Part in
13               respect of the agency.
14         (2)   The records must include all of the following, in respect of
15               authorities granted, varied or cancelled under this Part in respect
16               of the agency --
17                 (a) the date on which an authority was granted, varied or
18                       cancelled and the name of the person who granted,
19                       varied or cancelled it;
20                 (b) the name of the authorised person under the authority,
21                       together with details of the assumed identity to which
22                       the authority applies;
23                 (c) details of any request made to an issuing agency under
24                       section 58 in respect of the authority;
25                 (d) the general nature of the duties undertaken by the
26                       authorised person under the assumed identity;
27                 (e) general details of relevant financial transactions entered
28                       into using the assumed identity;
29                  (f) details of reviews of the authority under section 53.




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     Criminal Investigation (Covert Powers) Bill 2011
     Part 3          Assumed identities
     Division 7      Miscellaneous
     s. 78



1    78.         Audit of records
2          (1)   The chief officer of a law enforcement agency must arrange for
3                the records kept under section 77 for each authority in respect of
4                the agency to be audited --
5                  (a) at least once every 6 months while the authority is in
6                        force; and
7                  (b) at least once in the 6 months after the cancellation or
8                        expiry of the authority.
9          (2)   The audit is to be conducted by a person appointed by the chief
10               officer.
11         (3)   The person appointed to conduct the audit --
12                (a) may, but need not, be an officer of the law enforcement
13                      agency; and
14                (b) must not be a person --
15                        (i) who granted, varied or cancelled any of the
16                             authorities to which the records under section 77
17                             relate; or
18                       (ii) who is or was an authorised person, or the
19                             supervisor of an authorised civilian, under any of
20                             the authorities to which those records relate.
21         (4)   The results of an audit are to be reported to the chief officer.

22                            Division 7 -- Miscellaneous
23   79.         Delegation
24         (1)   In this section --
25               intelligence agency has the meaning given in the
26               Crimes Act 1914 (Commonwealth) section 15K;
27               senior officer means --
28                 (a) in relation to an authorising officer or chief officer who
29                        is the Commissioner of Police -- a police officer of or
30                        above the rank of superintendent; or

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                                           Assumed identities          Part 3
                                               Miscellaneous      Division 7
                                                                         s. 79



1           (b)    in relation to an authorising officer or chief officer who
2                  is the Chief Executive Officer of the Australian Crime
3                  Commission --
4                     (i) an SES employee as defined in the Australian
5                           Crime Commission Act 2002 (Commonwealth)
6                           section 4(1); or
7                    (ii) a person holding a prescribed office in the
8                           Australian Crime Commission;
9                  or
10           (c)   in relation to a chief officer who is the chief executive
11                 officer of the fisheries department -- a fisheries officer
12                 holding a prescribed office in the department; or
13          (d)    in relation to an intelligence agency -- a senior officer
14                 as defined in paragraphs (f) and (g) of the definition of
15                 senior officer in the Crimes Act 1914 (Commonwealth)
16                 section 15LH(3).
17   (2)   Except as provided by this section, and despite any other written
18         law to the contrary, the functions of an authorising officer or
19         chief officer under this Part cannot be delegated to any other
20         person.
21   (3)   An authorising officer for, or chief officer of, a law enforcement
22         agency may delegate to a senior officer any of his or her
23         functions under this Part relating to the granting, variation and
24         cancellation of authorities (including conducting reviews under
25         section 53, making applications under section 54 or 56, or
26         making requests under section 58 or 69).
27   (4)   A chief officer of an intelligence agency (within the meaning of
28         paragraph (a) of the definition of chief officer in the
29         Crimes Act 1914 (Commonwealth) section 15K) may delegate
30         to a senior officer of the agency any of the chief officer's
31         functions under this Part relating to the making of applications
32         under section 54 or 56.




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     Criminal Investigation (Covert Powers) Bill 2011
     Part 4          Witness identity protection
     Division 1      General
     s. 80



1                 Part 4 -- Witness identity protection
2                             Division 1 -- General
3    80.       Terms used
4              In this Part, unless the contrary intention appears --
5              appeal, against a decision, includes to seek a review of the
6              decision;
7              assumed name, of an operative, has the meaning given in
8              section 83(2)(a)(i);
9              corresponding law means a law of another jurisdiction that
10             corresponds to this Part, and includes a prescribed law of
11             another jurisdiction;
12             corresponding witness identity protection certificate means a
13             certificate given under a provision of a corresponding law that
14             corresponds to section 82;
15             court includes --
16               (a) a tribunal or other body established or continued under a
17                      written law and having a power to obtain evidence or
18                      information;
19               (b) a Royal Commission established under the Royal
20                      Commissions Act 1968;
21               (c) a commission, board, committee or other body
22                      established by the Governor or by the Government of
23                      the State to inquire into any matter;
24             court name, for an operative in relation to a proceeding, means
25             a name (other than the operative's real name) or code used to
26             identify the operative in the proceeding;
27             court proceeding means any criminal, civil or other proceeding
28             before, or inquiry, reference or examination by, a court, and
29             includes an arbitration;
30             false representation does not include a representation made
31             under an authority under Part 2 or 3;


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                      Criminal Investigation (Covert Powers) Bill 2011
                            Witness identity protection         Part 4
                                               General     Division 1
                                                                  s. 80



1    investigation means an investigation in relation to criminal
2    activity, including an investigation extending beyond this
3    jurisdiction;
4    lawyer means an Australian lawyer within the meaning of that
5    term in the Legal Profession Act 2008 section 3;
6    operative means a person who is or was --
7      (a) a participant in an authorised operation under Part 2; or
8      (b) authorised to acquire and use an assumed identity under
9            Part 3; or
10     (c) a law enforcement officer otherwise using an assumed
11           identity for the purposes of a law enforcement operation;
12   parliamentary committee means a committee or other body
13   established by either or both Houses of Parliament to inquire
14   into any matter;
15   parliamentary proceeding means any proceeding before, or
16   inquiry, reference or examination by, a parliamentary
17   committee;
18   party, to a proceeding, means --
19     (a) for a criminal proceeding, the prosecutor and each
20           accused person; or
21     (b) for a civil proceeding, each person who is a party to the
22           proceeding; or
23     (c) for any other proceeding, each person who may appear
24           or give evidence in the proceeding;
25   proceeding means a court proceeding or a parliamentary
26   proceeding;
27   professional misconduct means --
28     (a) an offence against the discipline of the Police Force
29           under the Police Act 1892; or
30     (b) misconduct or a breach of discipline (however
31           described) under a law of another jurisdiction that
32           corresponds to the Police Act 1892; or


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     Criminal Investigation (Covert Powers) Bill 2011
     Part 4          Witness identity protection
     Division 2      Witness identity protection certificates for operatives
     s. 81



1                    (c)   misconduct or a breach of discipline (however
2                          described) under a law of the Commonwealth that
3                          governs the conduct of members of staff of the
4                          Australian Crime Commission;
5                    (d) a breach of discipline as defined in the Public Sector
6                          Management Act 1994 section 3(1),
7                  as the case requires, but does not include conduct that is the
8                  subject of an informal inquiry only;
9                  witness identity protection certificate means a certificate given
10                 under section 82.

11   81.           Things done by, or given to, party's lawyer
12                 For the purposes of this Part --
13                  (a) anything permitted to be done by a party to a proceeding
14                         may be done by the party's lawyer; and
15                  (b) any requirement to give something to a party to a
16                         proceeding is satisfied by giving the thing to, or
17                         notifying, the party's lawyer.

18               Division 2 -- Witness identity protection certificates
19                                 for operatives
20   82.           Witness identity protection certificate -- giving
21         (1)     The chief officer of a law enforcement agency may give a
22                 certificate for an operative of the agency in relation to a
23                 proceeding if --
24                   (a) the operative is, or may be required, to give evidence in
25                          the proceeding; and
26                   (b) the chief officer is satisfied on reasonable grounds that
27                          the disclosure in the proceeding of the operative's true
28                          identity or where the operative lives is likely to --
29                             (i) endanger the safety of the operative or someone
30                                  else; or
31                            (ii) prejudice any investigation.

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                                            Witness identity protection      Part 4
                 Witness identity protection certificates for operatives Division 2
                                                                               s. 83



1          (2)   The chief officer must make all practicable inquiries to enable
2                him or her to ascertain the information required to be included
3                in the certificate by section 83.
4          (3)   A decision to give a witness identity protection certificate --
5                 (a) is final; and
6                 (b) cannot be impeached for informality or form; and
7                 (c) cannot be appealed against, called into question,
8                       quashed or invalidated in any court.
9          (4)   Subsection (3) does not prevent a decision to give a witness
10               identity protection certificate being called into question in the
11               course of any disciplinary proceeding against the person who
12               made the decision.
13         (5)   Subsection (3) does not limit judicial review for jurisdictional
14               error.

15   83.         Form of witness identity protection certificate
16         (1)   For the purposes of this section --
17                (a) a charge against a person for an offence is outstanding
18                       until the charge is finally dealt with in any of the
19                       following ways --
20                          (i) the charge is withdrawn;
21                         (ii) the charge is dismissed by a court;
22                        (iii) the person is discharged by a court;
23                        (iv) the person is acquitted or found guilty of the
24                               offence by a court;
25                       and
26                (b) an allegation of professional misconduct against a
27                       person is outstanding if the allegation has not been
28                       finally dealt with under --
29                          (i) in relation to a police officer -- the
30                               Police Act 1892;


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     Criminal Investigation (Covert Powers) Bill 2011
     Part 4          Witness identity protection
     Division 2      Witness identity protection certificates for operatives
     s. 83



1                        (ii)   in relation to a member of staff of the Australian
2                               Crime Commission -- the Australian Crime
3                               Commission Act 2002 (Commonwealth);
4                       (iii)   in relation to a fisheries officer -- the Public
5                               Sector Management Act 1994.
6       (2)    A witness identity protection certificate for an operative of a
7              law enforcement agency in relation to a proceeding must state
8              all of the following --
9                (a) if the operative --
10                        (i) is known to a party to the proceeding by a name
11                              other than the operative's real name, that name
12                              (the assumed name); or
13                       (ii) is not known to any party to the proceeding by
14                              the assumed name, the operative's court name
15                              for the proceeding;
16               (b) the name of the agency;
17               (c) the date of the certificate;
18               (d) the grounds for giving the certificate;
19               (e) whether the operative has been convicted or found guilty
20                      of an offence, in this jurisdiction or elsewhere, and, if
21                      so, particulars of each offence;
22                (f) whether any charges against the operative for an offence
23                      are outstanding, in this jurisdiction or elsewhere, and, if
24                      so, particulars of each charge;
25               (g) if the operative is or was a law enforcement officer --
26                        (i) whether the operative has been found guilty of
27                              professional misconduct and, if so, particulars of
28                              each finding; and
29                       (ii) whether any allegations of professional
30                              misconduct against the operative are outstanding
31                              and, if so, particulars of each allegation;
32               (h) whether, to the knowledge of the person giving the
33                      certificate, a court has made any adverse comment about

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                                   Criminal Investigation (Covert Powers) Bill 2011
                                          Witness identity protection        Part 4
                            Provisions applicable to court proceeding Division 2A
                                                                               s. 84



1                        the operative's credibility and, if so, particulars of the
2                        comment;
3                  (i)   whether, to the knowledge of the person giving the
4                        certificate, the operative has made a false representation
5                        when the truth was required and, if so, particulars of the
6                        representation;
7                  (j)   if there is anything else known to the person giving the
8                        certificate that may be relevant to the operative's
9                        credibility, particulars of the thing.
10         (3)   A witness identity protection certificate for an operative must
11               not contain information that may allow the operative's true
12               identity, or where the operative lives, to be revealed.
13         (4)   The Spent Convictions Act 1988 does not apply to the disclosure
14               of information under subsection (2)(e) or (f).

15         Division 2A -- Provisions applicable to court proceeding
16   84.         Application of Division
17         (1)   This Division applies in relation to a court proceeding in which
18               an operative is, or may be, required to give evidence obtained as
19               an operative.
20         (2)   To remove any doubt, this Division does not affect the operation
21               of the common law in relation to the protection of the identity of
22               a person who is not an operative who gives or intends to give
23               evidence in a court proceeding.

24   85.         Filing and notification
25         (1)   A witness identity protection certificate for an operative in
26               relation to a court proceeding must be filed in the court before
27               the operative gives evidence in the proceeding.
28         (2)   The person who files the certificate must give a copy of it to the
29               operative and each party to the proceeding at least 14 days (or
30               such shorter period as is agreed to by the party) before the day
31               on which the operative is to give evidence.

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     Criminal Investigation (Covert Powers) Bill 2011
     Part 4          Witness identity protection
     Division 2A     Provisions applicable to court proceeding
     s. 86



1          (3)   The court may order the person filing the certificate to give a
2                copy of it to someone else stated in the order.
3          (4)   This section applies subject to section 86.

4    86.         Leave for non-compliance
5          (1)   The person who has filed, or proposes to file, a witness identity
6                protection certificate may apply to the court for leave not to
7                comply with the requirement under section 85(2) in relation to
8                the time within which a copy of the certificate is to be given.
9          (2)   However, the court must not give such leave unless it is
10               satisfied that it was not reasonably practicable to comply with
11               the requirement referred to in subsection (1).

12   87.         Effect of witness identity protection certificate
13         (1)   This section applies if --
14                (a) a witness identity protection certificate for an operative
15                      is filed in accordance with section 85(1); and
16                (b) either --
17                         (i) a copy of the certificate is given to each party in
18                               accordance with section 85(2) and to each person
19                               in accordance with an order under section 85(3)
20                               (if any); or
21                        (ii) the court gives leave for this section to apply
22                               despite non-compliance with section 85(2) or (3).
23         (2)   If this section applies --
24                  (a) the operative may give evidence in the proceeding under
25                        the assumed name, or court name, stated in the
26                        certificate; and
27                 (b) subject to sections 89 and 90 --
28                          (i) a question must not be asked of a witness,
29                                including the operative, that may lead to the
30                                disclosure of the operative's true identity or
31                                where the operative lives; and

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                                   Criminal Investigation (Covert Powers) Bill 2011
                                          Witness identity protection        Part 4
                            Provisions applicable to court proceeding Division 2A
                                                                               s. 88



1                         (ii)   a witness, including the operative, cannot be
2                                required to (and must not) answer a question,
3                                give evidence or provide information that
4                                discloses, or may lead to the disclosure of, the
5                                operative's true identity or where the operative
6                                lives; and
7                        (iii)   a person involved in the proceeding must not
8                                make a statement that discloses, or may lead to
9                                the disclosure of, the operative's true identity or
10                               where the operative lives.
11         (3)   For the purposes of this section, a person involved in a
12               proceeding includes --
13                 (a) the court; and
14                 (b) a party to the proceeding; and
15                 (c) a person given leave to be heard or make submissions in
16                       the proceeding; and
17                 (d) a lawyer representing a person referred to in
18                       paragraph (b) or (c) or a lawyer assisting the court in the
19                       proceeding; and
20                 (e) any other officer of the court or person assisting the
21                       court in the proceeding; and
22                  (f) a person acting in the execution of any process or the
23                       enforcement of any order in the proceeding.

24   88.         Orders to protect operative's true identity or location
25         (1)   The court in which a witness identity protection certificate is
26               filed --
27                  (a) must hear the proceeding (including any application
28                      relating to the proceeding, such as an application for an
29                      order under paragraph (b) or an application under
30                      section 86 or 90) in closed court; and
31                 (b) may make any order it considers necessary or desirable
32                      to protect the true identity of the operative for whom the


                                                                             page 75
     Criminal Investigation (Covert Powers) Bill 2011
     Part 4          Witness identity protection
     Division 2A     Provisions applicable to court proceeding
     s. 89



1                        certificate is given or to prevent the disclosure of where
2                        the operative lives.
3          (2)   A person must not contravene an order under subsection (1)(b).
4                Penalty: imprisonment for 10 years.
5                Summary conviction penalty: a fine of $24 000 or imprisonment
6                    for 2 years.
7          (3)   Subsection (2) does not limit the court's power to punish for
8                contempt.

9    89.         Disclosure of operative's true identity to presiding officer
10         (1)   This section applies if a witness identity protection certificate
11               for an operative in relation to a proceeding is filed in a court.
12         (2)   The presiding officer in the proceeding may require the
13               operative to do one or both of the following --
14                 (a) to disclose the operative's true identity to the presiding
15                       officer;
16                (b) to provide the presiding officer with photographic
17                       evidence of that identity.
18         (3)   The presiding officer must not --
19                (a) record information disclosed to the presiding officer
20                      under subsection (2); or
21                (b) retain or copy a document or other thing provided to the
22                      presiding officer under that subsection.

23   90.         Disclosure of operative's true identity or location despite
24               certificate
25         (1)   This section applies if a witness identity protection certificate
26               for an operative in relation to a proceeding is filed in a court.




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                             Criminal Investigation (Covert Powers) Bill 2011
                                    Witness identity protection        Part 4
                      Provisions applicable to court proceeding Division 2A
                                                                         s. 90



1    (2)   A party to the proceeding, or a lawyer assisting the court in the
2          proceeding, may apply to the court --
3            (a) for leave --
4                    (i) to ask a question of a witness, including the
5                          operative, that may lead to the disclosure of the
6                          operative's true identity or where the operative
7                          lives; or
8                   (ii) for a person involved in the proceeding to make
9                          a statement that discloses, or may lead to the
10                         disclosure of, the operative's true identity or
11                         where the operative lives;
12                or
13           (b) for an order requiring a witness, including the operative,
14                to answer a question, give evidence or provide
15                information that discloses, or may lead to the disclosure
16                of, the operative's true identity or where the operative
17                lives.
18   (3)   The court may --
19          (a) give leave for the party or lawyer to do anything
20                mentioned in subsection (2)(a); and
21          (b) make an order requiring a witness to do anything
22                mentioned in subsection (2)(b).
23   (4)   However, the court must not give leave or make an order unless
24         satisfied about each of the following --
25           (a) there is evidence that, if accepted, would substantially
26                 call into question the operative's credibility;
27           (b) it would be impracticable to test properly the credibility
28                 of the operative without allowing the risk of disclosure
29                 of, or disclosing, the operative's true identity or where
30                 the operative lives;
31           (c) it is in the interests of justice for the operative's
32                 credibility to be able to be tested.



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     Criminal Investigation (Covert Powers) Bill 2011
     Part 4          Witness identity protection
     Division 2A     Provisions applicable to court proceeding
     s. 91



1          (5)   If there is a jury in the proceeding, the application must be heard
2                in the absence of the jury.
3          (6)   The court must make an order suppressing the publication of
4                anything said when --
5                  (a) the application is made; and
6                  (b) if leave is given or an order is made, the question is
7                       asked (and answered), the evidence is given, the
8                       information is provided or the statement is made.
9          (7)   Nothing in subsection (6) prevents the taking of a transcript of
10               court proceedings, but the court may make an order for how the
11               transcript is to be dealt with, including an order suppressing its
12               publication.
13         (8)   The court may make any other order it considers appropriate to
14               protect the operative's true identity or to prevent the disclosure
15               of where the operative lives.
16         (9)   A person must not contravene an order under subsection (6), (7)
17               or (8).
18               Penalty: imprisonment for 10 years.
19               Summary conviction penalty: a fine of $24 000 or imprisonment
20                    for 2 years.
21     (10)      Subsection (9) does not limit the court's power to punish for
22               contempt.

23   91.         Application for leave -- joinder as respondent
24         (1)   This section applies if --
25                (a) a witness identity protection certificate for an operative
26                      in relation to a proceeding is filed in a court; and
27                (b) a person applies --
28                         (i) for leave under section 86 or 90; or
29                        (ii) for an order under section 88 or 90.



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                                          Witness identity protection        Part 4
                            Provisions applicable to court proceeding Division 2A
                                                                               s. 92



1          (2)   The court in which the application is pending may allow a
2                person to join the application as a respondent if --
3                  (a) the person is --
4                           (i) the operative in relation to whom the witness
5                                identity protection certificate is given; or
6                          (ii) the chief officer of the agency that gave the
7                                witness identity protection certificate;
8                        and
9                  (b) the person applies to be joined to the application as a
10                       respondent; and
11                 (c) the person has sufficient interest in the subject matter of
12                       the application.
13         (3)   If a court allows a person to join the application as a respondent
14               under subsection (2), the court must allow the person, or the
15               person's legal representative, to appear and be heard.

16   92.         Directions to jury
17         (1)   This section applies if --
18                (a) a witness identity protection certificate for an operative
19                      in relation to a proceeding is filed in a court; and
20                (b) there is a jury in the proceeding; and
21                (c) the operative gives evidence.

22         (2)   The court must (unless it considers it inappropriate) direct the
23               jury not to give the operative's evidence any more or less
24               weight, or draw any adverse inferences against the defendant or
25               another party to the proceeding, because --
26                 (a) there is a witness identity protection certificate for the
27                       operative; or
28                 (b) the court has made an order under section 88
29                       or 90(6), (7) or (8).




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     Criminal Investigation (Covert Powers) Bill 2011
     Part 4          Witness identity protection
     Division 2B     Provisions applicable to parliamentary proceeding
     s. 93



1    93.         Adjournment for appeal decision
2          (1)   This section applies if, in proceedings before a court (the
3                original court) --
4                  (a) the original court gives, or refuses, leave under
5                       section 86 or 90 in relation to a witness identity
6                       protection certificate for an operative; or
7                  (b) the original court makes, or refuses to make, an order
8                       under section 88 or 90 in relation to a witness identity
9                       protection certificate for an operative.
10         (2)   A party to the proceedings may apply to the original court for an
11               adjournment --
12                 (a) to appeal against the decision of the original court to
13                      give or refuse leave, or to make or refuse to make the
14                      order; or
15                 (b) to decide whether to appeal or seek leave to appeal
16                      against the decision.
17         (3)   If an application is made under subsection (2), the original court
18               must grant the adjournment.
19         (4)   A court that has jurisdiction to hear and determine appeals from
20               a judgment, order or direction in the proceedings has
21               jurisdiction to hear and determine an appeal against the decision
22               to give or refuse leave, or to make or refuse to make the order.

23                    Division 2B -- Provisions applicable to
24                           parliamentary proceeding
25   93A.        Application of Division
26               This Division applies in relation to a parliamentary proceeding
27               in which an operative is, or may be, required to give evidence
28               obtained as an operative.




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                                Criminal Investigation (Covert Powers) Bill 2011
                                        Witness identity protection       Part 4
                Provisions applicable to parliamentary proceeding   Division 2B
                                                                         s. 93B



1    93B.    Witness identity protection certificate to be given to
2            Parliament
3      (1)   A witness identity protection certificate for an operative in
4            relation to a parliamentary proceeding must be given --
5              (a) to the Clerk of the House of Parliament that established
6                    the parliamentary committee concerned; or
7              (b) if the parliamentary committee concerned was
8                    established by both Houses of Parliament, to the Clerk
9                    of each House of Parliament,
10           before the operative gives evidence in the proceeding.
11     (2)   The certificate must be given at least 14 days before the day on
12           which the operative is to give evidence, unless in the
13           circumstances it is not reasonably practicable to do so.
14     (3)   The person who gives the certificate must give a copy of it to
15           the operative before the day on which the operative is to give
16           evidence.

17   93C.    Effect of witness identity protection certificate
18     (1)   This section applies if a witness identity protection certificate
19           for an operative is given in accordance with section 93B in
20           relation to a parliamentary proceeding.
21     (2)   If this section applies --
22              (a) the operative may give evidence in the proceeding under
23                    the assumed name, or court name, stated in the
24                    certificate; and
25             (b) subject to any resolution passed under section 93D(4) --
26                       (i) a question must not be asked of a witness,
27                            including the operative, that may lead to the
28                            disclosure of the operative's true identity or
29                            where the operative lives; and
30                      (ii) a witness, including the operative, cannot be
31                            required to (and must not) answer a question,

                                                                         page 81
     Criminal Investigation (Covert Powers) Bill 2011
     Part 4          Witness identity protection
     Division 2B     Provisions applicable to parliamentary proceeding
     s. 93D



1                              give evidence or provide information that
2                              discloses, or may lead to the disclosure of, the
3                              operative's true identity or where the operative
4                              lives; and
5                      (iii)   a person involved in the proceeding must not
6                              make a statement that discloses, or may lead to
7                              the disclosure of, the operative's true identity or
8                              where the operative lives.
9       (3)    For the purposes of subsection (2)(b)(iii), a person involved in a
10             proceeding includes --
11               (a) a member of the parliamentary committee; and
12               (b) a party to the proceeding; and
13               (c) a person given leave to be heard or make submissions in
14                     the proceeding; and
15               (d) a lawyer representing a person referred to in
16                     paragraph (b) or (c) or a lawyer assisting the
17                     parliamentary committee in the proceeding; and
18               (e) any other person assisting the parliamentary committee
19                     in the proceeding; and
20                (f) a person acting in the execution of any process or the
21                     enforcement of any order in the proceeding.
22      (4)    If this section applies, any evidence given by the operative in
23             the proceeding must be given in private.

24   93D.      Disclosure of operative's true identity or location despite
25             certificate
26      (1)    In this section --
27             relevant House, in relation to a parliamentary committee,
28             means --
29               (a) if the parliamentary committee was established by a
30                      House of Parliament -- that House; or
31               (b) if the parliamentary committee was established by both
32                      Houses of Parliament -- each House.

     page 82
                              Criminal Investigation (Covert Powers) Bill 2011
                                      Witness identity protection       Part 4
              Provisions applicable to parliamentary proceeding   Division 2B
                                                                       s. 93D



1    (2)   This section applies if a witness identity protection certificate
2          for an operative is given in accordance with section 93B in
3          relation to a parliamentary proceeding.
4    (3)   The parliamentary committee may seek the authorisation of the
5          relevant House --
6            (a) to ask a question of a witness, including the operative,
7                  that may lead to the disclosure of the operative's true
8                  identity or where the operative lives; or
9            (b) to require a witness, including the operative, to answer a
10                 question, give evidence or provide information that
11                 discloses, or may lead to the disclosure of, the
12                 operative's true identity or where the operative lives; or
13           (c) for a person involved in the proceeding to make a
14                 statement that discloses, or may lead to the disclosure
15                 of, the operative's true identity or where the operative
16                 lives.
17   (4)   The relevant House may pass a resolution authorising the doing
18         of anything mentioned in subsection (3)(a), (b) or (c).
19   (5)   However, the relevant House must not pass a resolution unless
20         satisfied about each of the following --
21           (a) there is evidence that, if accepted, would substantially
22                 call into question the operative's credibility;
23           (b) it would be impracticable to test properly the credibility
24                 of the operative without allowing the risk of disclosure
25                 of, or disclosing, the operative's true identity or where
26                 the operative lives.




                                                                       page 83
     Criminal Investigation (Covert Powers) Bill 2011
     Part 4          Witness identity protection
     Division 2C     Other matters
     s. 93E



1    93E.        Restrictions on content of reports to Parliament
2                If a witness identity protection certificate for an operative is
3                given in accordance with section 93B in relation to a
4                parliamentary proceeding, the parliamentary committee must
5                not disclose in a report to a House of Parliament --
6                   (a) the operative's true identity or where the operative lives;
7                        or
8                  (b) information that may lead to the disclosure of the
9                        operative's identity or where the operative lives.

10                          Division 2C -- Other matters
11   94.         Witness identity protection certificate -- cancellation
12         (1)   This section applies if the chief officer of a law enforcement
13               agency gives a witness identity protection certificate for an
14               operative of the agency in relation to a proceeding.
15         (2)   The chief officer may cancel the witness identity protection
16               certificate if the chief officer considers that it is no longer
17               necessary or appropriate to prevent the disclosure of the
18               operative's true identity or where the operative lives.
19         (3)   If the chief officer cancels the certificate --
20                  (a) after it has been filed in a court and before the matter
21                       has been finalised by the court, the chief officer must
22                       immediately give written notice to the court and each
23                       party to the proceeding that the certificate has been
24                       cancelled; or
25                 (b) after it has been given to the Clerk of a House of
26                       Parliament and before the matter has been finalised by
27                       the parliamentary committee concerned, the chief officer
28                       must immediately give written notice to the Clerk that
29                       the certificate has been cancelled.




     page 84
                                  Criminal Investigation (Covert Powers) Bill 2011
                                        Witness identity protection         Part 4
                                                     Other matters   Division 2C
                                                                              s. 95



1    95.         Permission to give information disclosing operative's true
2                identity or location
3          (1)   This section applies if the chief officer of a law enforcement
4                agency gives a witness identity protection certificate for an
5                operative of the agency in relation to a proceeding.
6          (2)   The chief officer may, in writing, permit a person to give
7                information (otherwise than in the proceeding) that discloses, or
8                may lead to the disclosure of, the operative's true identity or
9                where the operative lives if the chief officer considers it
10               necessary or appropriate for the information to be given.
11         (3)   The permission --
12                (a) must name the person who may give the information;
13                      and
14                (b) must name the person to whom the information may be
15                      given; and
16                (c) must state the information that may be given; and
17                (d) may state how the information may be given.

18   96.         Disclosure offences
19         (1)   A person must not do something (the disclosure action) that
20               discloses, or is likely to lead to the disclosure of, the true
21               identity of an operative for whom a witness identity protection
22               certificate has been given or where the operative lives unless --
23                 (a) the certificate has been cancelled under section 94
24                        before the person does the disclosure action; or
25                 (b) the disclosure action is --
26                           (i) required by section 89; or
27                          (ii) authorised by leave or by an order under
28                                section 90; or
29                         (iii) permitted under section 95.
30               Penalty: imprisonment for 10 years.
31               Summary conviction penalty: a fine of $24 000 or imprisonment
32                    for 2 years.

                                                                           page 85
     Criminal Investigation (Covert Powers) Bill 2011
     Part 4          Witness identity protection
     Division 2C     Other matters
     s. 97



1          (2)   An offence against subsection (1) is an indictable offence.
2          (3)   Nothing in this section limits or otherwise affects the operation
3                of the Parliamentary Privileges Act 1891.

4    97.         Evidentiary certificates
5          (1)   A chief officer of a law enforcement agency may sign a
6                certificate stating any of the following --
7                  (a) that, for the purposes of section 96(1)(a), a witness
8                         identity protection certificate for an operative in relation
9                         to a proceeding has not been cancelled under section 94;
10                 (b) whether, for the purposes of section 96(1)(b)(iii), the
11                        conduct that is the subject of the offence was permitted
12                        under section 95.
13         (2)   In any proceedings, a certificate given under this section is
14               sufficient evidence, in the absence of evidence to the contrary,
15               of the matters certified in it.

16   98.         Reports about witness identity protection certificates
17         (1)   As soon as practicable after the end of each financial year, the
18               chief officer of a law enforcement agency must submit to the
19               Minister a report about witness identity protection certificates
20               given by the chief officer during that year.
21         (2)   The report must include all of the following --
22                (a) the number of witness identity protection certificates
23                      given;
24                (b) on what basis the chief officer was satisfied about the
25                      matters mentioned in section 82(1)(b) for each
26                      certificate;
27                (c) if leave was given or an order made under section 90 in
28                      a proceeding in which a witness identity protection
29                      certificate for an operative of the agency was filed,
30                      details of the proceeding that relate to the leave or order;



     page 86
                                   Criminal Investigation (Covert Powers) Bill 2011
                                           Witness identity protection       Part 4
                         Mutual recognition under corresponding laws    Division 3
                                                                               s. 99



1                 (d)    if a witness identity protection certificate was cancelled
2                        under section 94, the reasons why the certificate was
3                        cancelled;
4                  (e)   if a permission was given under section 95, the reasons
5                        why the permission was given;
6                  (f)   any other information relating to witness identity
7                        protection certificates and the administration of this Part
8                        that the Minister considers appropriate.
9          (3)   A report must not include information that discloses, or may
10               lead to the disclosure of, an operative's true identity, or where
11               the operative lives, unless the witness identity protection
12               certificate for the operative has been cancelled.
13         (4)   The Minister is to cause a copy of the report to be laid before
14               each House of Parliament within 15 sitting days from the day on
15               which the report is received by the Minister.

16     Division 3 -- Mutual recognition under corresponding laws
17   99.         Recognition of witness identity protection certificates under
18               corresponding laws
19               The following provisions apply, with any necessary changes, to
20               a corresponding witness identity protection certificate as if it
21               were a witness identity protection certificate given under
22               section 82 --
23                 (a) section 85 (Filing and notification);
24                 (b) section 86 (Leave for non-compliance);
25                 (c) section 87 (Effect of witness identity protection
26                       certificate);
27                 (d) section 88 (Orders to protect operative's true identity or
28                       location);
29                 (e) section 89 (Disclosure of operative's true identity to
30                       presiding officer);



                                                                            page 87
     Criminal Investigation (Covert Powers) Bill 2011
     Part 4          Witness identity protection
     Division 4      Miscellaneous
     s. 100



1                (f)   section 90 (Disclosure of operative's true identity or
2                      location despite certificate);
3               (g)    section 91 (Application for leave -- joinder as
4                      respondent);
5               (h)    section 92 (Directions to jury);
6                (i)   section 93 (Adjournment for appeal decision);
7                (j)   section 96 (Disclosure offences);
8               (k)    section 97 (Evidentiary certificates).

9                           Division 4 -- Miscellaneous
10   100.      Delegation
11      (1)    In this section --
12             senior officer means --
13               (a) in relation to the Police Force -- a person holding office
14                      as a Deputy Commissioner of Police;
15               (b) in relation to the Australian Crime Commission --
16                        (i) an SES employee as defined in the Australian
17                              Crime Commission Act 2002 (Commonwealth)
18                              section 4(1); or
19                       (ii) a person holding a prescribed office in the
20                              Australian Crime Commission;
21               (c) in relation to the fisheries department -- a fisheries
22                      officer holding a prescribed office in the department.
23      (2)    Except as provided by this section, and despite any other written
24             law to the contrary, the functions of a chief officer under this
25             Part cannot be delegated to any other person.
26      (3)    A chief officer of a law enforcement agency may delegate any
27             of the chief officer's functions under this Part (except this
28             power of delegation) to a senior officer of the agency.




     page 88
                                Criminal Investigation (Covert Powers) Bill 2011
                                                  Miscellaneous           Part 5

                                                                           s. 101



1                         Part 5 -- Miscellaneous
2    101.     Regulations
3             The Governor may make regulations prescribing all matters that
4             are required or permitted by this Act to be prescribed, or are
5             necessary or convenient to be prescribed for giving effect to the
6             purposes of this Act.

7    101A.    Review of Parts 2 and 3
8       (1)   The Minister must carry out a review of the operation and
9             effectiveness of Parts 2 and 3 as soon as is practicable after the
10            end of the period of 5 years beginning on the day on which this
11            Act receives the Royal Assent.
12      (2)   The Minister must prepare a report based on the review and
13            must cause the report to be laid before each House of Parliament
14            as soon as is practicable after it is prepared and, in any event,
15            not later than 18 months after the end of the period referred to in
16            subsection (1).




                                                                         page 89
     Criminal Investigation (Covert Powers) Bill 2011
     Part 6          Savings provisions

     s. 102



1                       Part 6 -- Savings provisions
2    102.      Term used: commencement day
3              In this Part --
4              commencement day means the day on which this Part comes
5              into operation.

6    103.      Savings provision relating to Misuse of Drugs Act 1981
7       (1)    In this section --
8              former authorisation means an authorisation under the Misuse
9              of Drugs Act 1981 section 31(1) as in force immediately before
10             the day on which Part 8 comes into operation.
11      (2)    A former authorisation in force immediately before the
12             commencement day, is, on and after the commencement day, to
13             be taken to be an authority as defined in section 5 granted on the
14             commencement day and Part 2 applies, with any necessary
15             modifications, to that authority.

16   104.      Savings provision relating to Prostitution Act 2000
17      (1)    In this section --
18             former authorisation means an authorisation under the
19             Prostitution Act 2000 section 35(1) as in force immediately
20             before the day on which Part 9 comes into operation.
21      (2)    A former authorisation in force immediately before the
22             commencement day, is, on and after the commencement day, to
23             be taken to be an authority as defined in section 5 granted on the
24             commencement day and Part 2 applies, with any necessary
25             modifications, to that authority.




     page 90
                               Criminal Investigation (Covert Powers) Bill 2011
            Corruption and Crime Commission Act 2003 amended             Part 7

                                                                         s. 105



1           Part 7 -- Corruption and Crime Commission
2                      Act 2003 amended
3    105.    Act amended
4            This Part amends the Corruption and Crime Commission
5            Act 2003.

6    106.    Section 91 amended
7            In section 91(2)(n) after "issued to" insert:
8

9            officers of
10




                                                                       page 91
     Criminal Investigation (Covert Powers) Bill 2011
     Part 7A         Criminal Injuries Compensation
                     Act 2003 amended

     s. 106A


1              Part 7A -- Criminal Injuries Compensation
2                         Act 2003 amended
3    106A.     Act amended
4              This Part amends the Criminal Injuries Compensation Act 2003.

5    106B.     Section 13 amended
6              In section 13(5) delete "section 27." and insert:
7

8              section 27 or the Criminal Investigation (Covert Powers)
9              Act 2012 section 27, 31 or 34.
10


11   106C.     Section 16 amended
12             In section 16(5) delete "section 27." and insert:
13

14             section 27 or the Criminal Investigation (Covert Powers)
15             Act 2012 section 27, 31 or 34.
16


17   106D.     Section 17 amended
18             In section 17(5) delete "section 27." and insert:
19

20             section 27 or the Criminal Investigation (Covert Powers)
21             Act 2012 section 27, 31 or 34.
22




     page 92
                                Criminal Investigation (Covert Powers) Bill 2011
                               Misuse of Drugs Act 1981 amended           Part 8

                                                                            s. 107



1             Part 8 -- Misuse of Drugs Act 1981 amended
2    107.      Act amended
3              This Part amends the Misuse of Drugs Act 1981.

4    108.      Section 3 amended
5              In section 3(1) insert in alphabetical order:
6

7                     undercover officer means a participant or a
8                     corresponding participant as those terms are defined in
9                     the Criminal Investigation (Covert Powers) Act 2011
10                    section 5;
11                    undercover operation means an authorised operation
12                    or corresponding authorised operation as those terms
13                    are defined in the Criminal Investigation (Covert
14                    Powers) Act 2011 section 5;
15


16   109.      Section 26 amended
17      (1)    In section 26(2):
18               (a) delete paragraph (a) and insert:
19

20                     (a)   while he or she is an undercover officer acting
21                           in the course of an undercover operation,
22                           acquires a prohibited drug or prohibited plant;
23                           or
24

25              (b)    in paragraph (b) delete "an authorised person" and
26                     insert:
27

28                     an undercover officer
29

30      (2)    Delete section 26(3).


                                                                         page 93
     Criminal Investigation (Covert Powers) Bill 2011
     Part 8          Misuse of Drugs Act 1981 amended

     s. 110



1    110.           Section 31 replaced
2                   Delete section 31 and insert:
3


4             31.         Undercover officers
5                   (1)   An undercover officer who is not a police officer
6                         commits a simple offence if, after having been warned
7                         under subsection (2), the officer acquires a prohibited
8                         drug or prohibited plant while acting in the course of
9                         an undercover operation and does not deliver the
10                        prohibited drug or prohibited plant to a police officer as
11                        soon as is reasonably practicable after that acquisition.
12                  (2)   The Commissioner must warn in writing an undercover
13                        officer who is not a police officer that if, having
14                        acquired a prohibited drug or prohibited plant whilst
15                        acting in the course of an undercover operation, that
16                        undercover officer does not deliver the prohibited drug
17                        or prohibited plant to a police officer as soon as is
18                        reasonably practicable after that acquisition, that
19                        undercover officer commits a simple offence under
20                        subsection (1).
21


22   111.           Section 34 amended
23                  In section 34(1)(e) delete "or 31(4)" and insert:
24

25                  or 31(1)
26




     page 94
                            Criminal Investigation (Covert Powers) Bill 2011
                               Prostitution Act 2000 amended          Part 9

                                                                          s. 112



1           Part 9 -- Prostitution Act 2000 amended
2   112.   Act amended
3          This Part amends the Prostitution Act 2000.

4   113.   Section 35 deleted
5          Delete section 35.

6   114.   Section 36 amended
7          In section 36 delete "a function given by section 35(6) or".

8   115.   Section 53 deleted
9          Delete section 53.




                                                                     page 95
     Criminal Investigation (Covert Powers) Bill 2011
     Part 10         Witness Protection (Western Australia) Act 1996 amended

     s. 116



1           Part 10 -- Witness Protection (Western Australia)
2                         Act 1996 amended
3    116.       Act amended
4               This Part amends the Witness Protection (Western Australia)
5               Act 1996.

6    117.       Section 22A inserted
7               After section 21 insert:
8


9             22A.         Effect of new identity order
10                         A person who has a new identity under a new identity
11                         order is entitled to claim that identity as the person's
12                         only identity if the person is required under a law of
13                         this State to disclose the person's former identity for a
14                         purpose unrelated to any proceedings.
15


16   118.       Section 25 amended
17              In section 25(2):
18                (a) in paragraph (h) delete "SWPP," and insert:
19

20                          SWPP;
21

22                   (b)    after paragraph (h) insert:
23

24                           (i)   the participant fails to comply with
25                                 section 34A(2),
26




     page 96
                               Criminal Investigation (Covert Powers) Bill 2011
        Witness Protection (Western Australia) Act 1996 amended        Part 10

                                                                         s. 119



1              (c)    after each of paragraphs (a) to (f) insert:
2

3                     or
4


5    119.    Part 3 Division 1 heading inserted
6            At the beginning of Part 3 insert:
7


8                              Division 1 -- General
9


10   120.    Sections 30 and 31 deleted
11           Delete sections 30 and 31.

12   121.    Section 32 amended
13           Before section 32(1) insert:
14

15          (1A)     This section does not apply to the disclosure of a
16                   protected person's identity under section 34D or 34K.
17


18   122.    Part 3 Division 2 heading and Part 3 Division 2
19           Subdivision 1 heading inserted
20           After section 32 insert:
21


22                    Division 2 -- Evidence by participants
23                          Subdivision 1 -- Terms Used
24




                                                                       page 97
     Criminal Investigation (Covert Powers) Bill 2011
     Part 10         Witness Protection (Western Australia) Act 1996 amended

     s. 123



1    123.           Section 33 replaced
2                   Delete section 33 and insert:
3


4             33.         Terms used
5                         In this Division --
6                         another jurisdiction means another State, a Territory
7                         or the Commonwealth;
8                         corresponding law means a law of another jurisdiction
9                         that corresponds to this Division, and includes a
10                        prescribed law of another jurisdiction;
11                        corresponding non-disclosure certificate means a
12                        certificate given under a provision of a corresponding
13                        law that corresponds to section 34A(3);
14                        court includes --
15                          (a) a tribunal or other body established or
16                                 continued under a written law and having a
17                                 power to obtain evidence or information;
18                          (b) a Royal Commission established under the
19                                 Royal Commissions Act 1968;
20                          (c) a commission, board, committee or other body
21                                 established by the Governor or by the
22                                 Government of the State to inquire into any
23                                 matter;
24                        court proceedings means any proceedings in a court;
25                        lawyer means an Australian lawyer within the meaning
26                        of that term in the Legal Profession Act 2008 section 3;
27                        non-disclosure certificate means a certificate given
28                        under section 34A(3);
29                        parliamentary committee means a committee or other
30                        body established by either or both Houses of
31                        Parliament to inquire into any matter;


     page 98
                            Criminal Investigation (Covert Powers) Bill 2011
     Witness Protection (Western Australia) Act 1996 amended        Part 10

                                                                      s. 123



1               parliamentary proceedings means any proceedings
2               before a parliamentary committee;
3               party, to proceedings, means --
4                 (a) for criminal proceedings, the prosecutor and
5                       each accused person; or
6                 (b) for civil proceedings, each person who is a
7                       party to the proceedings; or
8                 (c) for any other proceedings, each person who
9                       may appear or give evidence in the
10                      proceedings;
11              proceedings means court proceedings or parliamentary
12              proceedings;
13              protected address, of a protected person, means --
14                (a) for proceedings in which the protected person is
15                      or may be required to give evidence under the
16                      person's new identity, the last place where the
17                      person lived under the person's former identity;
18                      or
19                (b) for proceedings in which the protected person is
20                      or may be required to give evidence under the
21                      person's former identity, the place where the
22                      person lives;
23              protected identity, of a protected person, means --
24                (a) for proceedings in which the protected person is
25                      or may be required to give evidence under the
26                      person's new identity, the person's former
27                      identity; or
28                (b) for proceedings in which the protected person is
29                      or may be required to give evidence under the
30                      person's former identity, the person's new
31                      identity;
32              protected person means a person who, having been
33              given a new identity under the SWPP, keeps the


                                                                    page 99
     Criminal Investigation (Covert Powers) Bill 2011
     Part 10         Witness Protection (Western Australia) Act 1996 amended

     s. 123



1                      identity whether or not the person remains a
2                      participant.

3                     Subdivision 2 -- Non-disclosure certificates for
4                                   protected persons

5             34A.     Non-disclosure certificates
6               (1)    In this section --
7                      court includes a court, within the meaning of that term
8                      in this Act, of another jurisdiction.
9               (2)    If a protected person is or may be required to give
10                     evidence in proceedings in a court or in parliamentary
11                     proceedings, whether under the person's new identity
12                     or former identity, the person must notify the
13                     Commissioner that the person is or may be required to
14                     give evidence in the proceedings.
15              (3)    The Commissioner may give a certificate for the
16                     protected person in relation to the proceedings and --
17                       (a) file a copy with the court; or
18                       (b) give a copy to the Clerk of the House of
19                             Parliament that established the parliamentary
20                             committee concerned or, if the parliamentary
21                             committee concerned was established by both
22                             Houses of Parliament, to the Clerk of each
23                             House of Parliament,
24                     as the case requires.

25            34B.     What non-disclosure certificate must state
26              (1)    A non-disclosure certificate for a protected person must
27                     state --
28                       (a) that the person is, or has been, included in the
29                            SWPP; and



     page 100
                            Criminal Investigation (Covert Powers) Bill 2011
     Witness Protection (Western Australia) Act 1996 amended        Part 10

                                                                      s. 123



1                (b)    that the person has been given a new identity
2                       under the SWPP; and
3                 (c)   that the person has not been convicted or found
4                       guilty of any offence other than an offence
5                       mentioned in the certificate.
6         (2)   The non-disclosure certificate must not include
7               information that discloses, or may lead to the
8               disclosure of any of the following --
9                 (a) the person's protected identity;
10                (b) the person's protected address;
11                (c) any other sensitive information as defined in
12                      section 32(2).

13     Subdivision 3 -- Provisions applicable to court proceedings

14    34CA. Application of Subdivision
15              This Subdivision applies in relation to court
16              proceedings in which a protected person is, or may be,
17              required to give evidence.

18    34C.      Effect of non-disclosure certificate
19        (1)   In this section --
20              person involved, in proceedings, includes --
21                (a) the court; and
22                (b) a party to the proceedings; and
23                (c) a person given leave to be heard or make
24                       submissions in the proceedings; and
25                (d) a lawyer representing a person referred to in
26                       paragraph (b) or (c) or a lawyer assisting the
27                       court in the proceedings; and
28                (e) any other officer of the court or person assisting
29                       the court in the proceedings; and



                                                                   page 101
     Criminal Investigation (Covert Powers) Bill 2011
     Part 10         Witness Protection (Western Australia) Act 1996 amended

     s. 123



1                       (f)   a person acting in the execution of any process
2                             or the enforcement of any order in the
3                             proceedings.
4               (2)   This section applies if a non-disclosure certificate for a
5                     protected person in relation to proceedings is filed in a
6                     court in this State.
7               (3)   If this section applies, in the proceedings --
8                       (a) a question must not be asked of a witness,
9                              including the protected person, that may lead to
10                             the disclosure of the protected person's
11                             protected identity or protected address or both;
12                             and
13                      (b) a witness, including the protected person,
14                             cannot be required to (and must not) answer a
15                             question, give evidence or provide information
16                             that discloses, or may lead to the disclosure of,
17                             the protected person's protected identity or
18                             protected address or both; and
19                      (c) a person involved in the proceedings must not
20                             make a statement that discloses, or may lead to
21                             the disclosure of, the protected person's
22                             protected identity or protected address or both.
23              (4)   The court may disclose to each party to the
24                    proceedings --
25                      (a) that the court has been given a non-disclosure
26                           certificate for a person who may be required to
27                           give evidence in the proceedings; and
28                      (b) what the certificate states.
29              (5)   The court may only disclose what the non-disclosure
30                    certificate states in the absence of the jury (if any) and
31                    the public.
32              (6)   If the court makes a disclosure about the
33                    non-disclosure certificate under subsection (4), the

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1               court must also inform the parties of the effect of the
2               certificate.
3         (7)   This section applies despite any other Act, but subject
4               to section 34D.

5     34D.      Disclosure of protected person's identity despite
6               certificate
7         (1)   This section applies if a non-disclosure certificate for a
8               protected person in relation to proceedings is filed in a
9               court in this State.
10        (2)   A party to the proceedings, or a lawyer assisting the
11              court in the proceedings, may apply to the court --
12                (a) for leave --
13                         (i) to ask a question of a witness, including
14                              the protected person, that may lead to
15                              the disclosure of the protected person's
16                              protected identity or protected address
17                              or both; or
18                        (ii) for a person involved in the proceedings
19                              to make a statement that discloses, or
20                              may lead to the disclosure of, the
21                              protected person's protected identity or
22                              protected address or both;
23                      or
24                (b) for an order requiring a witness, including the
25                      protected person, to answer a question, give
26                      evidence or provide information that discloses,
27                      or may lead to the disclosure of, the protected
28                      person's protected identity or protected address
29                      or both.
30        (3)   The court may --
31               (a) give leave for the party or lawyer to do
32                     anything mentioned in subsection (2)(a); and


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1                      (b)    make an order requiring a witness to do
2                             anything mentioned in subsection (2)(b).
3               (4)   However, the court must not give leave or make an
4                     order unless satisfied about each of the following --
5                       (a) there is evidence that, if accepted, would
6                            substantially call into question the protected
7                            person's credibility;
8                       (b) it would be impracticable to test properly the
9                            credibility of the protected person without
10                           allowing the risk of disclosure of, or disclosing,
11                           the protected person's protected identity or
12                           protected address or both;
13                      (c) it is in the interests of justice for the protected
14                           person's credibility to be able to be tested.
15              (5)   If there is a jury in the proceedings, the application
16                    must be heard in the absence of the jury.
17              (6)   Unless the court considers that the interests of justice
18                    require otherwise, the court must be closed when --
19                      (a) the application is made; and
20                      (b) if leave is given or an order is made, the
21                            question is asked (and answered), the evidence
22                            is given, the information is provided or the
23                            statement is made.
24              (7)   The court must make an order suppressing the
25                    publication of anything said when --
26                      (a) the application is made; and
27                     (b) if leave is given or an order is made, the
28                           question is asked (and answered), the evidence
29                           is given, the information is provided or the
30                           statement is made.
31              (8)   Nothing in subsection (7) prevents the taking of a
32                    transcript of court proceedings, but the court may make


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1               an order for how the transcript is to be dealt with,
2               including an order suppressing its publication.
3         (9)   The court may make any other order it considers
4               appropriate to protect the protected person's protected
5               identity or protected address or both.
6       (10)    A person must not contravene an order under
7               subsection (7), (8) or (9).
8               Penalty: imprisonment for 2 years.
9       (11)    Subsection (10) does not limit the court's power to
10              punish for contempt.

11    34E.      Directions to jury
12        (1)   This section applies if --
13               (a) a non-disclosure certificate for a protected
14                     person in relation to proceedings is filed in a
15                     court; and
16               (b) there is a jury in the proceedings; and
17               (c) the protected person gives evidence.
18        (2)   The court must (unless it considers it inappropriate)
19              direct the jury not to give the protected person's
20              evidence any more or less weight, or draw any adverse
21              inferences against the defendant or another party to the
22              proceedings, because --
23                (a) there is a non-disclosure certificate for the
24                       protected person; or
25                (b) the court has made an order under section 32
26                       or 34D(7), (8) or (9).




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1             34F.    Adjournment for appeal decision
2               (1)   This section applies if, in proceedings before a court
3                     (the original court) --
4                       (a) the original court gives, or refuses, leave under
5                             section 34D(3)(a) in relation to a
6                             non-disclosure certificate for a protected
7                             person; or
8                       (b) the original court makes, or refuses to make, an
9                             order under section 34D(3)(b) in relation to a
10                            non-disclosure certificate for a protected
11                            person.
12              (2)   A party to the proceedings may apply to the original
13                    court for an adjournment --
14                      (a) to appeal against the decision of the original
15                            court to give or refuse leave, or to make or
16                            refuse to make the order; or
17                      (b) to decide whether to appeal or seek leave to
18                            appeal against the decision.
19              (3)   If an application is made under subsection (2), the
20                    original court must grant the adjournment.

21            34G.    Jurisdiction to hear and determine appeals
22                    A court that has jurisdiction to hear and determine
23                    appeals from a judgment, order or direction in the
24                    proceedings has jurisdiction to hear and determine an
25                    appeal against the decision to give or refuse leave, or to
26                    make or refuse to make the order.

27            34H.    Recognition of non-disclosure certificates under
28                    corresponding laws
29                    The following provisions apply, with any necessary
30                    changes, to a corresponding non-disclosure certificate
31                    that is filed with a court in this State, as if it were a


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1               non-disclosure certificate given under
2               section 34A(3) --
3                 (a) section 34C (Effect of non-disclosure
4                       certificate);
5                 (b) section 34D (Disclosure of protected person's
6                       identity despite certificate).

7                Subdivision 4 -- Provisions applicable to
8                      parliamentary proceedings

9     34I.      Application of Subdivision
10              This Subdivision applies in relation to parliamentary
11              proceedings in which a protected person is, or may be,
12              required to give evidence.

13    34J.      Effect of non-disclosure certificate
14        (1)   In this section --
15              person involved, in proceedings, includes --
16                (a) a member of the parliamentary committee; and
17                (b) a party to the proceedings; and
18                (c) a person given leave to be heard or make
19                       submissions in the proceedings; and
20                (d) a lawyer representing a person referred to in
21                       paragraph (b) or (c) or a lawyer assisting the
22                       parliamentary committee in the proceedings;
23                       and
24                (e) any other person assisting the parliamentary
25                       committee in the proceedings; and
26                 (f) a person acting in the execution of any process
27                       or the enforcement of any order in the
28                       proceedings.




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1               (2)   This section applies if a non-disclosure certificate for a
2                     protected person is given under section 34A(3)(b) in
3                     relation to parliamentary proceedings.
4               (3)   If this section applies, in the proceedings --
5                       (a) a question must not be asked of a witness,
6                              including the protected person, that may lead to
7                              the disclosure of the protected person's
8                              protected identity or protected address or both;
9                              and
10                      (b) a witness, including the protected person,
11                             cannot be required to (and must not) answer a
12                             question, give evidence or provide information
13                             that discloses, or may lead to the disclosure of,
14                             the protected person's protected identity or
15                             protected address or both; and
16                      (c) a person involved in the proceedings must not
17                             make a statement that discloses, or may lead to
18                             the disclosure of, the protected person's
19                             protected identity or protected address or both.
20              (4)   The parliamentary committee may disclose to each
21                    party to the proceedings --
22                      (a) that a non-disclosure certificate for a person
23                            who may be required to give evidence in the
24                            proceedings has been given; and
25                     (b) what the certificate states.
26              (5)   If the parliamentary committee makes a disclosure
27                    about the non-disclosure certificate under
28                    subsection (4), the committee must also inform the
29                    parties of the effect of the certificate.
30              (6)   This section applies despite any other Act, but subject
31                    to section 34K.




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1     34K.      Disclosure of protected person's identity despite
2               certificate
3         (1)   In this section --
4               relevant House, in relation to a parliamentary
5               committee, means --
6                 (a) if the parliamentary committee was established
7                        by a House of Parliament -- that House; or
8                 (b) if the parliamentary committee was established
9                        by both Houses of Parliament -- each House.
10        (2)   This section applies if a non-disclosure certificate for a
11              protected person is given under section 34A(3)(b) in
12              relation to parliamentary proceedings.
13        (3)   The parliamentary committee may seek the
14              authorisation of the relevant House --
15                (a) to ask a question of a witness, including the
16                      protected person, that may lead to the
17                      disclosure of the protected person's protected
18                      identity or protected address or both; or
19                (b) to require a witness, including the protected
20                      person, to answer a question, give evidence or
21                      provide information that discloses, or may lead
22                      to the disclosure of, the protected person's
23                      protected identity or protected address or both;
24                      or
25                (c) for a person involved in the proceedings to
26                      make a statement that discloses, or may lead to
27                      the disclosure of, the protected person's
28                      protected identity or protected address or both.
29        (4)   The relevant House may pass a resolution authorising
30              the doing of anything mentioned in subsection (3)(a),
31              (b) or (c).




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1               (5)   However, the relevant House must not pass a resolution
2                     unless satisfied about each of the following --
3                       (a) there is evidence that, if accepted, would
4                             substantially call into question the protected
5                             person's credibility;
6                      (b) it would be impracticable to test properly the
7                             credibility of the protected person without
8                             allowing the risk of disclosure of, or disclosing,
9                             the protected person's protected identity or
10                            protected address or both.

11            34L.    Restrictions on content of reports to Parliament
12                    If a non-disclosure certificate for a protected person is
13                    given under section 34A(3)(b) in relation to
14                    parliamentary proceedings, the parliamentary
15                    committee must not disclose in a report to a House of
16                    Parliament --
17                      (a) the protected person's protected identity or
18                            protected address; or
19                      (b) information that may lead to the disclosure of
20                            the protected person's protected identity or
21                            protected address.
22


23   124.       Part 3 Division 3 heading inserted
24              Before section 34 insert:
25


26                           Division 3 -- Miscellaneous
27




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1    125.         Part 5 heading inserted
2                 After section 39 insert:
3


4             Part 5 -- Transitional and savings provisions
5


6    126.         Section 41 inserted
7                 After section 40 insert:
8


9           41.         Savings provision relating to Criminal Investigation
10                      (Covert Powers) Act 2011
11                (1)   In this section --
12                      commencement day means the day on which the
13                      Criminal Investigation (Covert Powers) Act 2011
14                      section 126 comes into operation;
15                      permission means a permission under section 33(1)(b)
16                      as in force immediately before the commencement day.
17                (2)   A permission given to a person for the purposes of
18                      particular proceedings is, on and after the
19                      commencement day, to be taken to be a non-disclosure
20                      certificate as defined in section 33 --
21                        (a) for the person; and
22                        (b) in relation to the proceedings,
23                      and Part 3 Division 3 applies, with any necessary
24                      modifications, to that certificate.
25




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Defined Terms




                                             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)
      acquire ................................................................................................................44
      ancillary conduct............................................................................................ 31(1)
      appeal..................................................................................................................80
      assumed name.......................................................................................... 80, 83(2)
      Australian Crime Commission .............................................................................3
      authorised civilian...............................................................................................44
      authorised officer ................................................................................................44
      authorised operation .............................................................................................5
      authorised person ................................................................................................44
      authorising officer.................................................................................................3
      authority..........................................................................................................5, 44
      cancel...................................................................................................61(1), 71(1)
      chief officer.....................................................................................................3, 44
      civilian participant ................................................................................................5
      commencement day ..........................................................................................102
      conduct .................................................................................................................3
      controlled conduct ................................................................................................5
      controlled operation..............................................................................................5
      corresponding authorised operation......................................................................5
      corresponding authority ..................................................................................5, 44
      corresponding law.....................................................................................5, 44, 80
      corresponding participant .....................................................................................5
      corresponding witness identity protection certificate .........................................80
      court....................................................................................................................80
      court name ..........................................................................................................80
      court proceeding .................................................................................................80
      criminal activity....................................................................................................3
      cross-border controlled operation ................................................................ 5, 6(1)
      disciplinary proceeding.........................................................................................3
      disclosure action ............................................................................................ 96(1)
      doing ...................................................................................................................44
      evidence ................................................................................................... 44, 58(1)
      false representation .............................................................................................80
      fisheries department..............................................................................................3
      fisheries officer .....................................................................................................3
      formal application............................................................................5, 10(2), 47(3)
      formal authority .........................................................................5, 15(1), 44, 49(1)
      formal cancellation of authority..................................................................... 52(3)


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                                                                                                 Defined Terms



formal variation application....................................................................... 5, 19(3)
formal variation of authority............................................................5, 21(1), 51(4)
former authorisation ........................................................................103(1), 104(1)
government agency...............................................................................................3
government issuing agency.................................................................................44
illicit goods ...........................................................................................................5
intelligence agency ........................................................................................ 79(1)
investigation .......................................................................................................80
issuing agency.....................................................................................................44
issuing chief officer ....................................................................................... 71(2)
jurisdiction ............................................................................................................3
law enforcement agency .......................................................................................3
law enforcement officer .......................................................................................3
law enforcement operation ...................................................................................3
law enforcement participant .................................................................................5
lawyer .................................................................................................................80
local controlled operation .................................................................................5, 7
Minister.................................................................................................................3
non-government issuing agency .........................................................................44
officer .................................................................................................................44
operational information ................................................................................. 35(1)
operative .............................................................................................................80
original court.................................................................................................. 93(1)
outstanding ..........................................................................................83(1), 83(1)
parliamentary committee ....................................................................................80
parliamentary proceeding ...................................................................................80
participant .................................................................................................. 5, 28(1)
participating jurisdiction.................................................................................5, 44
party....................................................................................................................80
Police Force ..........................................................................................................3
police officer.........................................................................................................3
prescribed .............................................................................................................3
principal law enforcement officer.........................................................................5
proceeding ..........................................................................................................80
professional misconduct .....................................................................................80
Register...............................................................................................................44
Registrar .............................................................................................................44
related controlled conduct.............................................................................. 31(1)
relevant House, ........................................................................................... 93D(1)
relevant offence ....................................................................................................5
relevant proceeding........................................................................................ 57(1)
senior officer........................................................................... 43(1), 79(1), 100(1)
sexual offence .......................................................................................................5
supervisor ...........................................................................................................44
suspect ..................................................................................................................5

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Defined Terms



      this jurisdiction .....................................................................................................3
      urgent application ............................................................................5, 10(2), 47(3)
      urgent authority................................................................................5, 15(1), 49(1)
      urgent cancellation of authority ..................................................................... 52(3)
      urgent variation application ....................................................................... 5, 19(3)
      urgent variation of authority ............................................................5, 21(1), 51(4)
      use.......................................................................................................................44
      witness identity protection certificate .................................................................80




 


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