Relevant Legislation and Other Links
Law Enforcement Integrity Commissioner Act 2006 (Cth) (‘LEIC Act’)
Crimes Act 1914 (Cth) (‘Crimes Act’)
Part 1AB Crimes Act 1914 – Controlled Operations
Part 1ABA Crimes Act 1914 – Integrity Testing
Where relevant, this Standard Operating Procedure (SOP) refers to specific provisions of the legislation.
This Standard Operating Procedure needs to be read in conjunction with the following Standard Operating Procedures:
- Surveillance Device Warrants;
- Telecommunications Interception and Stored Communication Warrants;
- Covert Human Intelligence Source Management [under development]; and
- Assumed Identities [under development].
Previous Versions
N/A
Approval
This Standard Operating Procedure is approved.
______
Michael Griffin AM
Integrity Commissioner
23 March 2016
Templates
No. / Template / TRIM referenceControlled Operations
5. / Formal Application for Controlled Operation / 15#5361DOC
6. / Urgent Application for Controlled Operation / 12#13924DOC
7. / Formal or Urgent Authority for Controlled Operation / 15#5360DOC
9. / Application for Formal Variation Authority / 12#13063DOC
10. / Variation of Authority by Integrity Commissioner / 15#5362DOC
11. / Variation to Authority’s Time Period in excess of three months / 12#12902DOC
12. / Application to nominated AAT Member for the Variation to Authority’s Time Period in excess of three months / 12#13473DOC
13. / Cancellation of Authority / 12#13505DOC
Integrity Testing
1. / Application for Authorisation / 15#9249DOC
2. / Integrity Testing Authority / 15#9250DOC
3. / Application for Variation to Authorisation / 15#9252DOC
4. / Cancellation of Integrity Testing Authority / 15#9251DOC
Contents
1.0INTRODUCTION
1.1Purpose
1.2Background The Crimes Act 1914 provides legislative authority for ACLEI to conduct controlled operations and integrity tests.
1.3Significant features of Controlled Operations and Integrity Tests
2.0CONTROLLED OPERATIONS
2.1General
2.2Application for Authorisation of Controlled Operation
2.2.1 Urgent Controlled Operation Application
2.2.2 Content of a Controlled Operation Application
2.3Granting Controlled Operation Authority
2.4Varying a Controlled Operation Authority
2.4.1 Types of Controlled Operation Variation Applications
2.4.2 Content of a Controlled Operation Variation Application
2.4.3 Granting a Variation of a Controlled Operation
2.4.4 Varying a Controlled Operation Authority to Extend Beyond 3 Months – Applications to the AAT
2.4.5 Granting a Controlled Operation Variation Application by a Nominated AAT member
2.5Cancellation or Delegation of Controlled Operation Authorities
2.6Effect and Delegation of Controlled Operation Authorities
2.7Defect in Controlled Operation Authorisation
2.8Protection of Participants in a Controlled Operation
2.8.1Indemnification against Criminal Responsibility – Controlled Operation
2.8.2Indemnification against Civil Liability – Controlled Operations
2.8.3Effect on Indemnity of Being Unaware of Variation or Cancellation of a Controlled Operation Authority
2.8.4Compensation for Loss, Damage or Injury incurred by Controlled Operation
2.9Unauthorised Disclosure of Controlled Operation Information
2.10Record Keeping and Reporting for Controlled Operations
2.10.1Record Keeping
2.10.2 Internal Reporting Requirements for Controlled Operations
2.10.3Reports on Controlled Operations to Ombudsman and Minister
2.10.4Ombudsman Oversight of Controlled Operations
3.0INTEGRITY TESTING
3.1General
3.2Application for Authorisation of an Integrity Test
3.3Granting Integrity Test Authority
3.4Variation to Integrity Test Authorities
3.5Cancellation of Integrity Test Authority
3.6Effect of Integrity Testing Authorities – application to individuals identified
3.7Defects contained in Integrity Test Authority
3.8Protection of Participants in an Integrity Test
3.8.1Indemnification against Civil Liability – Integrity Testing
3.8.2Effect on Indemnity of Being Unaware of Variation or Cancellation of an Integrity Testing Authority
3.9Unauthorised Disclosure of Information relating to an Integrity Test
3.10Record Keeping and Reporting for Integrity Testing
3.11Integrity Commissioner Oversight of Integrity Testing Conducted by Target Agencies
1.0INTRODUCTION
1.1Purpose
The Parliament of Australia has provided the Integrity Commissioner (IC) and Australian Commission for Law Enforcement Integrity (ACLEI) with sensitive, covert law enforcement powers. The use of these powers has the potential to affect privacy and other liberties of individuals.
To protect the legal rights of all parties, including ACLEI, this Standard Operating Procedure (SOP) aims to ensure that:
- integrity testing and controlled operations are conducted in strict accordance with the law,
- such operations are demonstrably fair, and
- appropriate records are kept to meet transparency and accountability requirements.
1.2BackgroundTheCrimes Act 1914 provides legislative authority for ACLEI to conduct controlled operations[1] and integrity tests[2].
The Crimes Act sets out how and in what circumstances applications for authorities for controlled operations and integrity tests may be granted, varied, and cancelled, as well as the protections afforded to participants and the necessary reporting requirements.
Controlled Operations
From ACLEI’s perspective, a controlled operation:
- involves the participation of law enforcement officers (which includes staff members of ACLEI)[3]
- is carried out to obtain evidence that may lead to the prosecution of a person for a serious Commonwealth offence[4] or a serious State or Territory offence that has a federal aspect[5], and
- may involve a law enforcement officer or other person in acts or omissions that would normally constitute a Commonwealth offence or an offence against a law of a State or Territory.
However, ACLEI may only conduct controlled operations if they relate to a corruption issue.
Integrity Tests
As an anti-corruption measure, an integrity test is an observed, covert simulation that tests an employee’s adherence to the law (relating to the employee’s duties) or to key agency guidelines through a ‘realistic scenario’ which is designed to allow a subject a clear choice to pass or fail. A subject will ‘pass’ an integrity test if his or her conduct was consistent with organisational and legislative requirements and a subject will ‘fail’ an integrity test if, for example, he or she engaged in corrupt activity or criminal behaviour.
The only target agencies able to use integrity testing are the Australian Federal Police (AFP), Australian Crime Commission (ACC) and the Department of Immigration and Border Protection (DIBP) (including the Australian Border Force).
Combined Integrity Test and Controlled Operation (ITCO)
A controlled operation and an integrity test may be conducted separately or a controlled operation may be part of an integrity test (known as an ‘integrity testing controlled operation (ITCO) authority’). In other words, they are not mutually exclusive.
When an integrity test authority is used as the basis of a controlled operation, it has the effect of lowering the offence threshold when applying for the controlled operation. Similarly, when an integrity test authority is used as the basis for obtaining a surveillance device warrant, it has the effect of lowering the offence threshold when applying for the surveillance device warrant.[6]
Significant Feature / Integrity Test /Controlled Operation (ITCO)Offence threshold / CO: Three year maximum penalty
ITCO: 12 month maximum penalty, and removes requirement that a State offence must have a Federal aspect
Permitted use of evidence / ITCO: expressly permits use for disciplinary offences
One benefit of using an ITCO (rather than just a controlled operation) is to ensure that any information obtained is able to be used in a disciplinary context, or in prosecuting a less complex offence. For example, it may be easier to demonstrate an unauthorised disclosure of information (a 12 month offence) than abuse of office (a 3 year offence requiring a higher test in relation to intention).
1.3Significant features of Controlled Operations and Integrity Tests
There are significant features and differences between controlled operations and integrity tests which must be borne in mind when deciding the type of operation.
Significant Feature / Controlled Operation / Integrity TestingSubject / Law enforcement officers or anyone involved in criminal corruption / Staff members of AFP, ACC, and DIBP.
Authorising officers / IC, Agency Head or equivalent of agency SES employee[7] / IC, Agency Head or authorised officer[8]
Basis of operation / Satisfied on reasonable grounds that a serious offence has, is, or likely to be committed, punishable by 3 year or more imprisonment penalty, and collecting evidence for prosecution.
If ITCO then penalty period for the controlled operation is 12 months imprisonment or more. / Reasonable suspicion that an offence has, is, or is likely to be committed, punishable by 12 months imprisonment or more
Indemnity / Against criminal and civil liability with exemptions[9] / Against civil liability only
Type of application / Formal or urgent application / Just an application
Maximum period of effect per authorisation / Cannot exceed 3 months – formal or 7 days if urgent / Cannot exceed 12 months
Determination of applications / Can grant authority unconditionally, conditionally or refuse application / Can grant authority unconditionally, conditionally or refuse application
Authorising Officer for Variation of authority / Extensions to period of effect or other variation– Nominated AAT member / IC, Agency Head or authorised officer
Maximum cumulative period of effect / 24 months / 24 months
Record keeping / Formal provisions for keeping of General Register / No specific provisions except to comply with reporting requirements and adherence to this SOP
Reporting / 6 monthly reports to Ombudsman and Minister
Annual reports to Ombudsman and Minister / Annual reports to Minister
2.0CONTROLLED OPERATIONS[10]
2.1General
ACLEI law enforcement officers may only conduct a controlled operation if it relates to a corruption issue.[11] There are two types of controlled operations – a controlled operation[12] or a major controlled operation[13].
A controlled operation:
- involves participation of law enforcement officers, and
- is carried out to obtain evidence that may lead to the prosecution of a person for a serious Commonwealth offence[14] or serious State offence that has a federal aspect,[15]and
- may involve law enforcement officers or other persons in conduct that would constitute a Commonwealth offence or offence against a law of a State.
A major controlled operation:
- involves the infiltration of an organised criminal group by one or more undercover law enforcement officers for more than seven days, or
- continues for more than three months, or
- is directed against suspected criminal activity that includes a threat to human life.
2.2Application for Authorisation of Controlled Operation[16]
The first step in the process of conducting a controlled operation is obtaining a controlled operation authority. This is the legal basis and authority for conducting the controlled operation. An ACLEI staff member who wishes to apply for an authority to conduct a controlled operation must first discuss the matter with Director Operations.
All controlled operations must be authorised by an authorising officer appointed under the relevant part of the Crimes Act. Current authorisations are available on the ACLEI intranet. If it is proposed that the operation be authorised by the Integrity Commissioner, the application must first be cleared by Executive Director Operations.
Any staff member of ACLEI participating in a controlled operation is called a ‘law enforcement participant’ and the person who is responsible for the conduct of the controlled operation is known as the ‘principal law enforcement officer’.
There are two types of controlled operation application:
- a formal application[17] which must be writing, and
- an urgent application.
There are different requirements and implications for each type of application.
The application should be made using thecontrolled operation formal application template.
2.2.1 Urgent Controlled Operation Application
An urgent application is madewhen the applicant believes that the delay caused by making a formal application may affect the potential success of the controlled operation. Urgent applications can be made orally in person, by telephone, or by any other means of communication. If an urgent application is made, the applicant must make a written record of the application as soon as practicable thereafter and give a copy of it to the authorising officer to whom the application was made.[18]
An urgent application is not available if an authorising officer has granted a previous urgent authority for a controlled operation concerning the same matter.[19]
2.2.2 Content of a Controlled Operation Application
The content of the application, be it formal or urgent, must provide sufficient information for the authorising officer to grant or not grant the application, including:
- how the proposed operation relates to an investigation of a corruption issue
- whether the proposed controlled operation has been the subject of an earlier related application (detailing whether it was formal or urgent) for authority or variation of the authority, and if so whether the application or variation was granted, and
- the time period (period of effect) which is being applied for – cannot exceed three months in the case of a formal application or seven days in the case of an urgent application.
The application should be accompanied by a draft authority for the authorised officer to sign.
Authorities should be drafted using thecontrolled operation formal authorityand controlled operation urgent authority.
If the authorising officer requires further information, the applicant must provide it.[20]
2.3Granting Controlled Operation Authority
The authorising officer will consider the applications against the statutory requirements and, if satisfied it is appropriate, sign the draft authority. This document then becomes the formal authority for the controlled operation. An application for a controlled operation may either be authorised unconditionally, conditionally or refused[21].
In the case of an urgent application or a formal application, if the authorising officer is satisfied that the delay caused by granting formal authority may affect the success of the controlled operation, the manner of granting authorisation can be orally in person, by telephone or by any other means of communication.
Statutory requirements stipulate what is to be contained in the formal or urgent authority.[22]
The controlled operation commences at the time that the authority is granted.[23] If the authority is an urgent authority then it commences when the Integrity Commissioner or his or her delegate advises the applicant that the urgent authority has been granted.
If the controlled operation involves illicit goods that may be dealt with by Customs, it is best practice that the head of DIBP be informed in writing as soon as the authority is granted. The notification must include the applicant’s name, the date on which the authority was granted, and – to the extent to which it is known – the place(s) and time(s) at which the illicit goods are expected to pass into the control of Customs.
2.4Varying a Controlled Operation Authority
An ACLEI officer may apply to an authorising officer for a variation of a controlled operation authority,[24] or an authority may be varied upon the authorising officer’s own initiative.[25]
The variation of authority can:
- extend the period of effect of the authority (so long as it is not for a period greater than 3 months and is a formal application), and/or
- vary the participants and/or conduct involved in the controlled operation. [26]
A variation of authority can be made if the authorising officer is satisfied that the variation of authority will not authorise a significant alteration of the nature of the controlled operation.[27] ‘Significant alteration’ of the nature of the controlled operation is not defined, but may include a change to the nature of the criminal offence that forms the basis of the operation. If in doubt, guidance should be sought from ACLEI Legal.
If circumstances call for a significant alteration, an entirely new controlled operation authority should be sought.
2.4.1 Types of Controlled Operation Variation Applications
There are two forms of variation application:[28]
- formal variation application (made in writing), or
- urgent variation application.
An urgent variation application may be made if the applicant has reason to believe that the delay caused by making a formal variation application may affect the success of the controlled operation to which the authority relates. An urgent application can be made orally in person, or by telephone or by any other means of communication.
More than one application for variation may be made regarding the same controlled operation authority. However, no two urgent variation applications should be made consecutively.
A formal variation application must be in writing and be based upon thecontrolled operation variation applicationtemplate.
2.4.2 Content of a Controlled Operation Variation Application
The variation application, whether formal or urgent, must:
- state whether the controlled operation authority has been the subject of an earlier urgent variation application
- state whether that urgent variation application was the last application for a variation
- state whether or not it was granted, and
- state the proposed period of effect of the variation, bearing in mind that it cannot exceed three months including any previous extensions.
In the case of an urgent variation application, the proposed extension to the period of effect cannot exceed the lesser of 7 days and a period that would result in the period of effect of the authority exceeding three months including any previous extensions.[29]
As soon as practicable after an urgent variation application is granted, a written record of the application must be made and a copy of it given to the authorising officer to whom the application was made.
2.4.3 Granting a Variation of a Controlled Operation
The authorising officer will consider the applications against the statutory requirements and, if satisfied it is appropriate, sign the draft authority.[30] This document then becomes the formal authority for the controlled operation. An application for a controlled operation may either be authorised unconditionally, conditionally or refused.
The authorising officer may vary the authority either conditionally or unconditionally or may refuse the application.
2.4.4 Varying a Controlled Operation Authority to Extend Beyond 3 Months – Applications to the AAT
If the net effect of the variation to the authority is to extend the period of effect or the cumulative period of effect of the controlled operation to greater than 3 months, an application for variation must be submitted to a nominated Administrative Appeals Tribunal (AAT) member.[31] This can be a formal application or an urgent application; however successive urgent applications must not be made.
There are two conditions to the making of such a variation order:
- that the period of effect of the authority variation cannot be less than three months, and
- the total cumulative periods of effect including this variation application not exceed 24 months.
The requirements for this application are substantially the same as for the original application to the authorising officer and therefore the controlled operation variation applicationtemplate can be used as a guide.
There are a number of matters to be aware of when making an application to the AAT:
- The nominated AAT member may only vary a controlled operation authority during the 2 weeks immediately before the term of the authority would otherwise end.[32]
- Successive applications for extensions of the term of the operation may be made to, and granted by, a nominated AAT member; however the total term of an operation must not exceed 24 months.[33]
- If a nominated AAT member has previously extended the period of effect of the authority, an authorising officer may vary any other aspect of the authority as long as the variations do not significantly alter the nature of the controlled operation.
- Formal or urgent variation applications must state whether or not the controlled operation has been the subject of an earlier urgent variation application andwhether the variation was granted.
- The proposed period of the extension must not exceed in the case of a formal variation, three months. In the case of an urgent variation, the proposed period of extension must not exceed 7 days.[34]
The nominated AAT member may require additional information to be furnished by the applicant for proper consideration of the application. As soon as possible after making an urgent variation application which is not in writing, the applicant must make a written record of the application and give a copy to the nominated AAT member to whom the application was made.