Cross-Border Law Enforcement Legislation Amendment Act 2005 (Qld)

Queensland Cross-Border Law Enforcement Legislation Amendment Act 2005 Act No. 45 of 2005

Queensland Cross-Border Law Enforcement Legislation Amendment Act 2005 Contents Part 1 1 2 Part 2 Division 1 3 Division 2 4 5 6 7 8 9 10 11 12 Page Preliminary Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Amendment of Police Powers and Responsibilities Act 2000 Preliminary Act amended in pt 2 and sch 1. . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Amendments Insertion of new s 4A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 4A Act binds all persons . . . . . . . . . . . . . . . . . . . . . . . . . 17 Amendment of s 8 (Act does not affect court’s common law discretion to exclude evidence) . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Omission of ch 4, pt 2, hdg and divs 1–5 . . . . . . . . . . . . . . . . . . . 17 Replacement of ch 4, pt 2, div 7, hdg. . . . . . . . . . . . . . . . . . . . . . 17 Amendment of s 157 (Public interest monitor) . . . . . . . . . . . . . . . 18 Amendment of s 159 (Monitor’s functions) . . . . . . . . . . . . . . . . . . 18 Amendment of s 160 (Monitor’s annual report) . . . . . . . . . . . . . . 19 Renumbering and relocation of ch 4, pt 2, div 7. . . . . . . . . . . . . . 20 Replacement of ch 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Chapter 5 Controlled activities 132 Object of ch 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 133 Relationship to other laws and matters . . . . . . . . . . . 20 134 Lawfulness of particular actions . . . . . . . . . . . . . . . . . 21 135 Authorised controlled activities . . . . . . . . . . . . . . . . . . 21 136 Protection from liability . . . . . . . . . . . . . . . . . . . . . . . . 22 137 Admissibility of evidence obtained through controlled activities . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

2 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 138 Evidentiary provision . . . . . . . . . . . . . . . . . . . . . . . . . Chapter 5A Controlled operations Part 1 Preliminary 139 Purposes of ch 5A . . . . . . . . . . . . . . . . . . . . . . . . . . . 140 Definitions for ch 5A . . . . . . . . . . . . . . . . . . . . . . . . . . 141 Relationship to other laws and matters . . . . . . . . . . . 142 When a controlled operation is conducted in this jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part 2 Controlled operations committee Division 1 Establishment 143 Establishment of controlled operations committee . . . 144 Independent member . . . . . . . . . . . . . . . . . . . . . . . . . 145 Acting independent member . . . . . . . . . . . . . . . . . . . Division 2 Functions, business and recommendations 146 Committee functions. . . . . . . . . . . . . . . . . . . . . . . . . . 147 Committee business . . . . . . . . . . . . . . . . . . . . . . . . . . 148 Committee recommendations . . . . . . . . . . . . . . . . . . Division 3 Protection 149 Protection for committee members. . . . . . . . . . . . . . . Part 3 Authorisation of controlled operations Division 1 Procedure for authorising controlled operations 150 Application for authority to conduct controlled operation ............................. 151 Application must be referred to committee . . . . . . . . . 152 Particular CMC controlled operations. . . . . . . . . . . . . 153 Procedure in urgent circumstances other than if s 152 applies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154 Deciding application . . . . . . . . . . . . . . . . . . . . . . . . . . 155 Matters to be taken into account . . . . . . . . . . . . . . . . 156 Form of authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157 Duration of authority . . . . . . . . . . . . . . . . . . . . . . . . . . Division 2 Variation and cancellation of authorities 158 Variation of authority. . . . . . . . . . . . . . . . . . . . . . . . . . 159 Application for variation of authority . . . . . . . . . . . . . . 160 Variation must be referred to committee. . . . . . . . . . . 161 Particular CMC controlled operations. . . . . . . . . . . . . 23 24 24 27 28 29 29 29 30 30 30 31 31 33 33 34 34 35 36 38 39 39 40 41

3 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 162 Procedure in urgent circumstances other than if s 161 applies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163 Deciding the application to vary the authority. . . . . . . 164 Way to vary authority . . . . . . . . . . . . . . . . . . . . . . . . . 165 Form of variation of authority . . . . . . . . . . . . . . . . . . . 166 Cancellation of authority. . . . . . . . . . . . . . . . . . . . . . . Division 3 Effect of authority 167 Effect of authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168 Defect in authority . . . . . . . . . . . . . . . . . . . . . . . . . . . Part 4 Conduct of controlled operations Division 1 Controlled conduct engaged in for controlled operations 169 Protection from criminal responsibility for controlled conduct during authorised operations . . . . . . . . . . . . 170 Indemnification of participants against civil liability . . 171 Effect of ss 169–170 on other laws relating to criminal investigation . . . . . . . . . . . . . . . . . . . . . . . . . 172 Effect of being unaware of variation or cancellation of authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173 Protection from criminal responsibility for particular ancillary conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . Division 2 Compensation and notification of third parties 174 Compensation for property loss or serious damage. . 175 Notification requirements . . . . . . . . . . . . . . . . . . . . . . Division 3 Recognition of corresponding authorities 176 Recognition of corresponding authorities . . . . . . . . . . Part 5 Compliance and monitoring Division 1 Information restrictions 177 Unauthorised disclosure of information . . . . . . . . . . . Division 2 Reporting and record keeping 178 Principal law enforcement officer’s reports. . . . . . . . . 179 Chief executive officers’ reports . . . . . . . . . . . . . . . . . 180 Annual report by report entity. . . . . . . . . . . . . . . . . . . 181 Keeping documents connected with authorised operations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182 General register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Division 3 Inspections 183 Inspection of records . . . . . . . . . . . . . . . . . . . . . . . . . 42 42 43 44 44 45 45 46 47 48 49 49 50 51 52 52 54 55 56 57 58 59

4 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 Part 6 General Division 1 Delegation 184 Delegation generally. . . . . . . . . . . . . . . . . . . . . . . . . . 185 Delegation—commissioner . . . . . . . . . . . . . . . . . . . . 186 Delegation—CMC chairperson. . . . . . . . . . . . . . . . . . Division 2 Evidentiary provisions 187 Evidence of authorities . . . . . . . . . . . . . . . . . . . . . . . . Chapter 5B Assumed identities Part 1 Preliminary 188 Purpose of ch 5B . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189 How purpose is achieved . . . . . . . . . . . . . . . . . . . . . . 190 Definitions for ch 5B . . . . . . . . . . . . . . . . . . . . . . . . . . 191 Relationship to other laws and matters . . . . . . . . . . . Part 2 Authorities for assumed identities 192 Application for authority to acquire or use assumed identity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193 Deciding application . . . . . . . . . . . . . . . . . . . . . . . . . . 194 Form of authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195 Period of authority . . . . . . . . . . . . . . . . . . . . . . . . . . . 196 Variation or cancellation of authority . . . . . . . . . . . . . 197 Review of authority . . . . . . . . . . . . . . . . . . . . . . . . . . . Part 3 Evidence of assumed identities Division 1 Creation of birth certificates for assumed identities 197A Approval for creation of birth certificate for assumed identity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197B Order authorising creation of birth certificate for assumed identity under corresponding authority . . . . 197C Giving effect to birth certificate approval . . . . . . . . . . 197D Destruction of birth certificate created under s 197C . 197E Cancelling authority affecting entry in participating jurisdiction’s register of births, deaths or marriages . . 197F Restriction about records and access to application for authority to create birth certificate. . . . . . . . . . . . . Division 2 Other provisions about evidence of assumed identities 197G Request for evidence of assumed identity . . . . . . . . . 197H Government issuing agency to comply with request . 60 60 60 61 62 62 62 64 65 66 67 68 68 69 70 70 71 71 72 72 73 73

5 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 197I Non-government issuing agency may comply with request . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197J Cancelling evidence of assumed identity . . . . . . . . . . Division 3 Protections and indemnities 197K Protection from criminal responsibility—officer of issuing agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197L Indemnity for issuing agency and officers in relation to creation of birth certificates . . . . . . . . . . . . . . . . . . 197M Indemnity for issuing agency and officers in relation to other evidence of assumed identities . . . . . . . . . . . 197N Protection from criminal responsibility for particular ancillary conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part 4 Effect of authorities 197O Assumed identity may be acquired and used. . . . . . . 197P Protection from criminal responsibility—authorised person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197Q Indemnity for authorised person . . . . . . . . . . . . . . . . . 197R Particular qualifications . . . . . . . . . . . . . . . . . . . . . . . 197S Effect of being unaware of variation or cancellation of authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part 5 Recognition of assumed identities 197T Request to participating jurisdiction for evidence of assumed identity . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197U Request from participating jurisdiction for evidence of assumed identity . . . . . . . . . . . . . . . . . . . . . . . . . . 197V Direction from participating jurisdiction to cancel evidence of assumed identity . . . . . . . . . . . . . . . . . . . 197W Indemnity for issuing agency and officer . . . . . . . . . . 197X Application of ch 5B to corresponding authority . . . . . Part 6 Compliance and monitoring Division 1 Misuse of assumed identity and information 197Y Misuse of assumed identity . . . . . . . . . . . . . . . . . . . . 197Z Disclosing information about assumed identity . . . . . Division 2 Reporting and record keeping 197ZA Report about authorities for assumed identities etc. . 197ZB Record keeping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197ZC Audit of records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part 7 Delegation 197ZD Delegation generally. . . . . . . . . . . . . . . . . . . . . . . . . . 73 74 74 74 75 75 76 76 77 77 78 79 79 80 80 80 81 82 83 84 85 86

6 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 197ZE Delegation—commissioner . . . . . . . . . . . . . . . . . . . . 197ZF Delegation—CMC chairperson. . . . . . . . . . . . . . . . . . Chapter 5C Surveillance device warrants Part 1 Preliminary 197ZG Purposes of ch 5C . . . . . . . . . . . . . . . . . . . . . . . . . . . 197ZH Definitions for ch 5C . . . . . . . . . . . . . . . . . . . . . . . . . . 197ZI Meaning of relevant offence . . . . . . . . . . . . . . . . . . . . 197ZJ When an investigation is conducted in this jurisdiction 197ZK Relationship to other laws and matters . . . . . . . . . . . Part 2 Warrants Division 1 Introduction 197ZL Types of warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197ZM Who may issue warrants . . . . . . . . . . . . . . . . . . . . . . Division 2 Surveillance device warrants 197ZN Application for surveillance device warrant. . . . . . . . . 197ZO Who may be present at consideration of application . 197ZP Deciding application . . . . . . . . . . . . . . . . . . . . . . . . . . 197ZQ What must a surveillance device warrant contain . . . 197ZR What a surveillance device warrant authorises . . . . . 197ZS Extension and variation of surveillance device warrant ............................. 197ZT Revocation of surveillance device warrant . . . . . . . . . 197ZU Discontinuance of use of surveillance device under warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Division 3 Retrieval warrants 197ZV Application for retrieval warrant . . . . . . . . . . . . . . . . . 197ZW Who may be present at consideration of application . 197ZX Deciding application . . . . . . . . . . . . . . . . . . . . . . . . . . 197ZY What must a retrieval warrant contain . . . . . . . . . . . . 197ZZ What a retrieval warrant authorises . . . . . . . . . . . . . . 197ZZA Revocation of retrieval warrant . . . . . . . . . . . . . . . . . . 197ZZB Discontinuance of retrieval warrant . . . . . . . . . . . . . . Part 3 Emergency authorisations 197ZZC Emergency authorisation—risk of serious personal violence or substantial property damage . . . . . . . . . . 197ZZD Application for approval after use of surveillance device under emergency authorisation . . . . . . . . . . . 86 87 88 88 91 92 92 93 93 94 95 96 97 98 100 101 102 103 103 104 104 105 106 107 107 108

7 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 197ZZE Who may be present at consideration of application . 109 197ZZF Consideration of application . . . . . . . . . . . . . . . . . . . . 109 197ZZG Judge may approve emergency use of powers . . . . . 110 197ZZH Admissibility of evidence . . . . . . . . . . . . . . . . . . . . . . 111 Part 4 Recognition of corresponding warrants and authorisations 197ZZI Corresponding warrants . . . . . . . . . . . . . . . . . . . . . . . 111 197ZZJ Corresponding emergency authorisations . . . . . . . . . 112 Part 5 Compliance and monitoring Division 1 Restrictions on use, communication and publication of information 197ZZK Definitions for div 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . 112 197ZZL Prohibition on communication or publication of protected information . . . . . . . . . . . . . . . . . . . . . . . . . 114 197ZZM Permitted use of protected information. . . . . . . . . . . . 116 197ZZN Dealing with records obtained by use of surveillance devices . . . . . . . . . . . . . . . . . . . . . . . . 118 197ZZO Protection of surveillance device technologies and methods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119 197ZZP Protected information in the custody of a court . . . . . 119 Division 2 Reporting and record keeping 197ZZQ Report to judge or magistrate. . . . . . . . . . . . . . . . . . . 120 197ZZR Annual reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122 197ZZS Keeping documents connected with warrants and emergency authorisations . . . . . . . . . . . . . . . . . . . . . 124 197ZZT Other records to be kept. . . . . . . . . . . . . . . . . . . . . . . 124 197ZZU Register of warrants and emergency authorisations . 125 Division 3 Inspections 197ZZV Inspection of records . . . . . . . . . . . . . . . . . . . . . . . . . 126 197ZZW Report on inspection . . . . . . . . . . . . . . . . . . . . . . . . . 127 Division 4 General 197ZZX Evidentiary certificates . . . . . . . . . . . . . . . . . . . . . . . . 127 13 Amendment of s 373 (Assistance in exercising powers) . . . . . . . 128 14 Amendment of s 375 (Power to use force—exercise of certain powers) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129 15 Replacement of ch 11, pt 2, div 2, hdg. . . . . . . . . . . . . . . . . . . . . 129 16 Amendment of s 400 (Application of div 2). . . . . . . . . . . . . . . . . . 129 17 Insertion of new ch 11, pt 2, div 2, sdiv 2, hdg and s 402A . . . . . 130

8 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 Subdivision 2 Covert acts under chapters 4 and 4A 402A Application of sdiv 2 . . . . . . . . . . . . . . . . . . . . . . . . . . 130 18 Amendment of s 403 (Information to be recorded in register) . . . 130 19 Insertion of new ch 11, pt 2, div 2, sdiv 3 and sdiv 4, hdg . . . . . . 130 Subdivision 3 Covert acts under chapters 5A and 5C 403A Application of sdiv 3 . . . . . . . . . . . . . . . . . . . . . . . . . . 131 403B Information to be included in register for surveillance device warrants and retrieval warrants . . 131 403C Information to be included in register for emergency authorisations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132 403D Information to be included in register for controlled operations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132 20 Amendment of s 404 (Who must record information in register) . 134 21 Amendment of s 409 (Other authorised inspections) . . . . . . . . . . 134 22 Amendment of s 411 (Application of div 3). . . . . . . . . . . . . . . . . . 135 23 Amendment of s 419 (Correcting registers) . . . . . . . . . . . . . . . . . 135 24 Amendment of s 451 (Obtaining warrants, orders and authorities, etc., by telephone or similar facility). . . . . . . . . . . . . . 135 25 Amendment of s 452 (Steps after issue of prescribed authority) . 136 26 Amendment of s 453 (Presumption about exercise of powers under prescribed authority) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137 27 Amendment of s 454 (Protection of methodologies) . . . . . . . . . . 137 28 Insertion of new ch 13, pt 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137 Part 5 Transitional provisions for Cross-Border LawEnforcementLegislationAmendmentAct2005 Division 1 Preliminary 484 Definitions for pt 5. . . . . . . . . . . . . . . . . . . . . . . . . . . . 137 Division 2 Controlled activities 485 Transitional provision for controlled activities . . . . . . . 138 Division 3 Controlled operations Subdivision 1 Definitions 486 Definitions for div 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . 138 Subdivision 2 Controlled operations committee 487 Transitional provisions about committee membership 140 488 Transitional provisions about committee business . . . 141 Subdivision 3 Controlled operation approvals 489 Transitional provisions for police service controlled operation approvals . . . . . . . . . . . . . . . . . . . . . . . . . . 141

9 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 490 Transitional provisions for CMC controlled operation approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142 491 Transitional provision for pre-commencement day recommendations. . . . . . . . . . . . . . . . . . . . . . . . . . . . 142 Subdivision 4 Covert operatives 492 Transitional provisions for police service covert operatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142 493 Transitional provisions for CMC covert operatives . . . 143 Division 4 Assumed identities 494 Authorities for identity documents that are birth certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143 495 Identity documents other than birth certificates . . . . . 144 Division 5 Surveillance devices Subdivision 1 Definitions 496 Definitions for div 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . 145 Subdivision 2 Transitional provisions for police service surveillance devices 497 Transitional provisions for existing police service surveillance devices . . . . . . . . . . . . . . . . . . . . . . . . . . 145 498 Transitional provisions for protection of records . . . . . 146 499 Transitional provision for use and disclosure of information obtained from using surveillance devices 147 Subdivision 3 Transitional provisions for CMC surveillance devices 500 Transitional provisions for existing CMC surveillance devices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147 501 Transitional provisions for protection of records . . . . . 148 502 Transitional provisions for use and disclosure of information obtained from using surveillance devices 148 Division 6 General 503 Transitional regulation-making power . . . . . . . . . . . . . 148 29 Insertion of new schs 2–3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 Schedule 2 Relevant offences for controlled operations and surveillance device warrants Schedule 3 Relevant offences for chapter 5C disclosure of information provisions 30 Amendment of sch 4 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 154

10 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 Division 3 Subdivision 1 31 32 33 34 35 36 37 Subdivision 2 38 39 40 41 42 43 Subdivision 3 44 45 46 47 48 49 Part 3 Division 1 50 Division 2 51 Amendments relating to Australian Crime Commission activities Controlled operations related amendments Amendment of s 141 (Relationship to other laws and matters) . . Amendment of s 143 (Establishment of controlled operations committee) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Amendment of s 180 (Annual report by report entity) . . . . . . . . . Replacement of s 182 (General register) . . . . . . . . . . . . . . . . . . . 182 General register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Amendment of s 184 (Delegation generally) . . . . . . . . . . . . . . . . Insertion of new s 186A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186A Delegations—ACC . . . . . . . . . . . . . . . . . . . . . . . . . . . Amendment of sch 4 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . Assumed identities related amendments Amendment of s 191 (Relationship to other laws and matters) . . Amendment of s 193 (Deciding application). . . . . . . . . . . . . . . . . Amendment of s 197ZA (Report about authorities for assumed identities etc.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Amendment of s 197ZD (Delegation generally) . . . . . . . . . . . . . . Insertion of new s 197ZFA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197ZFA Delegation—ACC . . . . . . . . . . . . . . . . . . . . . . . . . . . . Amendment of sch 4 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . Surveillance device warrant related amendments Amendment of s 197ZH (Definitions for ch 5C) . . . . . . . . . . . . . . Amendment of s 197ZK (Relationship to other laws and matters) Amendment of s 197ZN (Application for surveillance device warrant) ....................................... Amendment of s 197ZZL (Prohibition on communication or publication of protected information) . . . . . . . . . . . . . . . . . . . . . . Amendment of s 197ZZR (Annual reports) . . . . . . . . . . . . . . . . . Amendment of sch 4 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . Amendment of EvidenceAct1977 Preliminary Act amended in pt 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Amendments relating to police and Crime and Misconduct Commission activities Replacement of pt 2, div 5 (Witness anonymity) . . . . . . . . . . . . . Division 5 Witness identity protection 161 161 162 162 162 162 162 162 163 164 164 164 164 165 165 165 166 166 167 167 168 168 169 169

52 53 Division 3 54 55 11 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 Subdivision 1 Preliminary 21B Purposes of div 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21C Definitions for div 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . 21D Application of div 5 to lawyer of party to a proceeding .......................... Subdivision 2 Witness identity protection certificates for operatives 21E Application of sdiv 2 . . . . . . . . . . . . . . . . . . . . . . . . . . 21F Giving witness identity protection certificate . . . . . . . 21G Form of witness identity protection certificate . . . . . . 21H Filing and notification . . . . . . . . . . . . . . . . . . . . . . . . . 21I Effect of witness identity protection certificate . . . . . . 21J Orders to protect operative’s identity etc. . . . . . . . . . . 21K Disclosure of operative’s identity etc. despite certificate ............................. 21KA Directions to jury . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21KB Witness identity protection certificate—cancellation . 21KC Permission to give information disclosing operative’s identity etc. . . . . . . . . . . . . . . . . . . . . . . . . 21KD Disclosure offences . . . . . . . . . . . . . . . . . . . . . . . . . . 21KE Review of giving of witness identity protection certificate by police service . . . . . . . . . . . . . . . . . . . . 21KF Giving information about witness identity protection certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21KG Report about witness identity protection certificates . 21KH Recognition of witness identity protection certificates under corresponding laws . . . . . . . . . . . . Subdivision 3 General 21KI Delegation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Insertion of new pt 9, div 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Division 3 Cross-Border Law Enforcement Legislation Amendment Act 2005 143 Witness anonymity certificates . . . . . . . . . . . . . . . . . . Amendment of sch 3 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . Amendments relating to Australian Crime Commission activities Amendment of s 21C (Definitions for div 5) . . . . . . . . . . . . . . . . . Amendment of s 21G (Form of witness identity protection certificate) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169 170 172 172 172 173 176 176 178 178 180 181 181 182 183 184 185 186 186 186 187 187 188 189

56 57 58 Part 4 59 60 61 62 63 64 65 66 Part 5 67 68 12 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 Amendment of s 21H (Filing and notification) . . . . . . . . . . . . . . . Amendment of s 21KI (Delegation) . . . . . . . . . . . . . . . . . . . . . . . Amendment of sch 3 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . Amendment of Witness Protection Act 2000 Act amended in pt 4 and sch 2. . . . . . . . . . . . . . . . . . . . . . . . . . . Replacement of pt 3, div 2 (Provisions about proceedings involving protected witnesses) . . . . . . . . . . . . . . . . . . . . . . . . . . . Division 2 Proceedings involving protected witnesses Subdivision 1 Preliminary 24 Definitions for div 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . 24A Application of div 2 to lawyer of party to a proceeding .......................... Subdivision 2 Proceedings involving protected witnesses 25 Requirement if protected witness becomes a witness in a proceeding . . . . . . . . . . . . . . . . . . . . . . . 26 What non-disclosure certificate must state. . . . . . . . . 27 Effect of non-disclosure certificate . . . . . . . . . . . . . . . 27A Disclosure of protected witness’s identity despite certificate ............................. 27B Recognition of corresponding non-disclosure certificate ............................. Amendment of s 30 (Dealing with rights, obligations and restrictions of protected witness) . . . . . . . . . . . . . . . . . . . . . . . . . Amendment of s 36 (Offence of disclosures about protected witnesses or officers) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Amendment of s 37 (Offence of disclosure by prescribed persons) ...................................... Amendment of s 48 (Delegation) . . . . . . . . . . . . . . . . . . . . . . . . . Insertion of new pt 5, div 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Division 2 Transitional provisions for Cross-Border Law Enforcement Legislation Amendment Act 2005 55 Definitions for div 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 Existing non-disclosure certificates . . . . . . . . . . . . . . 57 Provision about notice under pre-amended Act . . . . . Amendment of sch 2 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . Amendment of CrimeandMisconductAct2001 Act amended in pt 5 and sch 3. . . . . . . . . . . . . . . . . . . . . . . . . . . Amendment of s 40 (Commission may issue directions about how notifications are to be made) . . . . . . . . . . . . . . . . . . . . . . . . 189 189 189 190 190 190 191 191 192 192 194 196 196 196 196 197 197 197 198 198 198 199 200

13 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 69 Insertion of new ch 3, pt 6A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200 Part 6A Controlled operations and controlled activities for misconduct offences Division 1 Preliminary 132 Object of pt 6A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200 133 Investigation of minor matters not affected. . . . . . . . . 201 134 Lawfulness of particular actions . . . . . . . . . . . . . . . . . 201 135 Controlled operations and activities generally . . . . . . 202 Division 2 Controlled operations committee 136 Declaration of controlled operations committee . . . . . 202 137 Committee’s functions . . . . . . . . . . . . . . . . . . . . . . . . 202 138 Provisions applying to committee and committee’s annual report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203 Division 3 Approval of controlled operations 139 Application for approval . . . . . . . . . . . . . . . . . . . . . . . 204 140 Application must be referred to committee . . . . . . . . . 205 141 Particular controlled operations . . . . . . . . . . . . . . . . . 205 142 Procedure in urgent circumstances other than if s 141 applies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206 143 Consideration and approval of application . . . . . . . . . 206 144 What approval must state. . . . . . . . . . . . . . . . . . . . . . 207 145 Effect of approval . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208 Division 4 Variation of approval for controlled operation 146 Application to vary approval . . . . . . . . . . . . . . . . . . . . 208 146A Application must be referred to committee . . . . . . . . . 209 146B Particular controlled operations . . . . . . . . . . . . . . . . . 209 146C Procedure in urgent circumstances other than if s 146B applies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210 146D When approval may be given . . . . . . . . . . . . . . . . . . . 210 146E How approval may be varied . . . . . . . . . . . . . . . . . . . 210 Division 5 Special provisions about creating identity documents 146F Request for issue of document to conceal identity . . . 211 146G Giving effect to authority under s 146F . . . . . . . . . . . 211 146H Special provisions about concealing identities of covert operatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211 Division 6 Authorising controlled activities 146I Authorised controlled activities . . . . . . . . . . . . . . . . . . 212

14 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 70 71 72 73 Part 6 74 Schedule 1 Schedule 2 Schedule 3 Schedule 4 Division 7 Miscellaneous 146J Disclosure of information . . . . . . . . . . . . . . . . . . . . . . 146K Protection from liability . . . . . . . . . . . . . . . . . . . . . . . . 146L Admissibility of evidence obtained through controlled operation . . . . . . . . . . . . . . . . . . . . . . . . . . 146M Evidentiary provision . . . . . . . . . . . . . . . . . . . . . . . . . 146N Powers not to be delegated . . . . . . . . . . . . . . . . . . . . Amendment of s 317 (Powers of the parliamentary commissioner) ................................. Insertion of new ch 8, pt 2, hdg . . . . . . . . . . . . . . . . . . . . . . . . . . Insertion of new ch 8, pt 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part 3 Transitional provisions for Cross-Border Law Enforcement Legislation Amendment Act 2005 376 Definitions for pt 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . 377 Transitional provisions for pre-commencement day referrals to committee. . . . . . . . . . . . . . . . . . . . . . . . . 378 Transitional provisions for controlled operations. . . . . 379 Transitional provision for pre-commencement day recommendations. . . . . . . . . . . . . . . . . . . . . . . . . . . . 380 Transitional provision for covert operatives. . . . . . . . . 381 Transitional provisions for authorities for birth certificates ............................. 382 Identity documents other than birth certificates . . . . . Amendment of sch 2 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . Minor and consequential amendments Amendment of other Acts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Minor and consequential amendments of PolicePowersandResponsibilities Act 2000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Minor amendments of Witness Protection Act 2000 . . . . . . . Minor and consequential amendments of Crime andMisconductAct2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Other Acts amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Criminal Code. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Freedom of Information Act 1992 . . . . . . . . . . . . . . . . . . . . . . . . . Police Service Administration Act 1990 . . . . . . . . . . . . . . . . . . . . ProstitutionAct1999 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213 214 216 216 217 217 217 218 218 219 220 220 220 220 221 221 223 224 228 229 234 234 235 235 237

Queensland Cross-Border Law Enforcement Legislation Amendment Act 2005 Act No. 45 of 2005 An Act to amend legislation relating to the enforcement of the criminal law [Assented to 14 October 2005]

s 1 16 Cross-Border Law Enforcement Legislation Amendment Act 2005 The Parliament of Queensland enacts— s3 No. 45, 2005 Part 1 Preliminary 1 Short title This Act may be cited as the Cross-Border Law Enforcement Legislation Amendment Act 2005 . 2 Commencement (1) This Act commences on a day to be fixed by proclamation. (2) The Acts Interpretation Act 1954 , section 15DA does not apply to— (a) part 2, division 3; 1 or (b) part 3, division 3. 2 Part 2 Amendment of Police Powersand Responsibilities Act 2000 Division 1 Preliminary 3 Act amended in pt 2 and sch 1 This part and schedule 1 amend the PolicePowersandResponsibilities Act 2000. 1 Part 2 (Amendment of Police Powers and Responsibilities Act 2000), division 3 (Amendments relating to Australian Crime Commission activities) 2 Part 3 (Amendment of Evidence Act 1977), division 3 (Amendments relating to Australian Crime Commission activities)

s 4 17 s 7 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 Division 2 Amendments 4 Insertion of new s 4A After section 4— insert — ‘4A Act binds all persons ‘(1) This Act binds all persons, including the State, and, so far as the legislative power of the Parliament permits, the Commonwealth and the other States. ‘(2) Nothing in this Act makes the State, the Commonwealth or another State liable to be prosecuted for an offence.’. 5 Amendment of s 8 (Act does not affect court’s common law discretion to exclude evidence) (1) Section 8, heading, at the end— insert — ‘or stay criminal proceedings’. (2) Section 8, after ‘discretion’— insert — ‘or stay the proceeding in the interests of justice’. 6 Omission of ch 4, pt 2, hdg and divs 1–5 Chapter 4, part 2, heading and divisions 1 to 5— omit. 7 Replacement of ch 4, pt 2, div 7, hdg Chapter 4, part 2, division 7, heading— omit, insert — ‘Part 5 Public interest monitor ’.

s 8 18 s 9 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 8 Amendment of s 157 (Public interest monitor) Section 157(1), from ‘to monitor’— omit, insert — ‘to monitor— (a) applications for, and the use of, surveillance device warrants, retrieval warrants and covert search warrants; and (b) applications for approvals of the use of surveillance devices under emergency authorisations.’. 9 Amendment of s 159 (Monitor’s functions) (1) Section 159(1), ‘surveillance warrants’— omit, insert — ‘surveillance device warrants, retrieval warrants, approvals of the use of surveillance devices under emergency authorisations,’. (2) Section 159(2)— omit, insert — ‘(2) The functions are— (a) to monitor compliance by police officers with chapter 4A in relation to matters concerning applications for covert search warrants; and (b) to monitor compliance by law enforcement officers with chapter 5C in relation to matters concerning applications for surveillance device warrants, retrieval warrants and approvals of the use of surveillance devices under emergency authorisations; and (c) to appear at any hearing of an application to a Supreme Court judge for a warrant or approval mentioned in paragraph (a) or (b), or to a magistrate for a warrant mentioned in paragraph (b), to test the validity of the application, and for that purpose at the hearing, to— (i) present questions for the applicant to answer and examine or cross-examine any witness; and

s 10 19 s 10 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 (ii) make submissions on the appropriateness of granting the application; and (d) to appear at a consideration of a report made to a Supreme Court judge or a magistrate or given to the monitor and referred to a judge or magistrate under section 197ZZQ; 3 and (e) to gather statistical information about the use and effectiveness of covert search warrants and surveillance device warrants; and (f) to report as required by this Act on any matter about which this Act expressly requires the public interest monitor to report; and (g) whenever the public interest monitor considers it appropriate— (i) to give to the commissioner a report on noncompliance by police officers with chapter 4A; or (ii) to give to the chief executive officer of a law enforcement agency a report on noncompliance by law enforcement officers of the law enforcement agency with chapter 5C. 4 ’ (3) Section 159(3), ‘and (c)’— omit, insert — ‘, (c), (d) and (e)’. 10 Amendment of s 160 (Monitor’s annual report) (1) Section 160(1), ‘surveillance warrants and’— omit . (2) Section 160(1)— insert— 3 Section 197ZZQ (Report to judge or magistrate) 4 Chapter 4A (Covert search warrants), chapter 5C (Surveillance device warrants)

s 11 20 s 12 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 ‘ Note — Under section 197ZZW, 5 the monitor, as inspection entity for the police service under chapter 5C, is also required to prepare reports on matters relating to surveillance device warrants and give the Minister a copy of the report. ’. 11 Renumbering and relocation of ch 4, pt 2, div 7 Chapter 4, part 2, division 7, as amended by sections 7 to 10— relocate to chapter 11 as part 5 and renumber sections 157 to 162 as sections 443P to 443U. 12 Replacement of ch 5 Chapter 5— omit, insert— ‘Chapter 5 Controlled activities ‘132 Object of ch 5 ‘The object of this chapter is to ensure the effective investigation of offences by— (a) ensuring anything that may be approved or authorised under this chapter is approved or authorised only in appropriate circumstances; and (b) providing appropriate protection from civil and criminal liability for persons acting under this chapter; and (c) clarifying the status of evidence obtained by persons who engage in controlled activities under this chapter. ‘133 Relationship to other laws and matters ‘(1) This chapter is not intended to affect any other law of this State that authorises, controls or monitors the conduct of activities— 5 Section 197ZZW (Report on inspection)

s 12 21 s 12 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 (a) that are for the purpose of obtaining evidence that may lead to the prosecution of a person for an offence; and (b) that involve, or may involve, conduct for which participants in the operation would otherwise be criminally responsible. ‘(2) Also, this chapter is not intended to affect the investigation of minor matters or investigative activities that, by their nature, can not be planned but involve the participation of police officers in activities that may be unlawful. ‘(3) Subject to subsections (1) and (2), a controlled activity may be approved only under this chapter. ‘134 Lawfulness of particular actions ‘To remove doubt, it is declared— (a) that it is lawful for a police officer of at least the rank of inspector, acting in accordance with policies or procedures established by the commissioner, to authorise another police officer to engage in a stated controlled activity for the police service; and (b) that it is lawful for a person acting under an authority given under section 135 to engage in a controlled activity in accordance with the authority and policies or procedures established by the commissioner. ‘135 Authorised controlled activities ‘(1) This section applies if a police officer considers it is reasonably necessary for a police officer to engage in conduct that— (a) is directed to obtaining evidence of the commission of an offence against a particular person; and (b) involves the following (a controlled activity )— (i) a single meeting between the police officer and the person, whether or not the meeting was the result of a written or oral communication with the person;

s 12 22 s 12 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 (ii) deliberately concealing the true purpose of the communication between the police officer and the person; (iii) the police officer engaging in conduct for which, apart from section 136, the police officer would be criminally responsible. ‘(2) A police officer of at least the rank of inspector may, in accordance with any policy of the police service, authorise another police officer to engage in a stated controlled activity. 6 ‘(3) The authority must be written and state the controlled activity the police officer is authorised to engage in. ‘(4) A police officer authorised to engage in the controlled activity must comply with any relevant policy or procedure of the police service. ‘(5) In this section— conduct includes any act or omission. ‘136 Protection from liability ‘(1) This section applies to each of the following persons (a relevant person )— (a) a person who authorised a controlled activity under section 135; (b) a person who is or was authorised under this chapter to engage in a controlled activity. ‘(2) A relevant person does not incur civil liability for an act done, or omission made, in the honest belief that it was done or omitted to be done under this chapter. ‘(3) If subsection (2) prevents a civil liability attaching to the person, the liability attaches instead to the State. ‘(4) Also, a relevant person does not incur criminal liability for an act done, or omission made— 6 Under the FreedomofInformationAct1992 , section 19 (Availability of certain documents) the policy documents must be made available for inspection and purchase by members of the community.

s 12 23 s 12 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 (a) under an authority given for a controlled activity; and (b) in accordance with the policy or procedure about controlled activities applying to the particular controlled activity. ‘(5) In addition, a relevant person does not incur criminal liability for an act done, or omission made, that, because of a controlled activity, was reasonably necessary for protecting the safety of any person. ‘(6) However, subsection (5) does not relieve a police officer from criminal liability for an act done or omission made if the act or omission results in— (a) injury to, or the death of, a person; or (b) serious damage to property; or (c) a serious loss of property. ‘(7) This section does not limit the Police Service AdministrationAct 1990 , section 10.5. 7 ‘137 Admissibility of evidence obtained through controlled activities ‘It is declared that evidence gathered because of a controlled activity is not inadmissible only because it was obtained by a person while engaging in an unlawful act if the unlawful act was authorised under this chapter. ‘138 Evidentiary provision ‘In a proceeding, a certificate of the commissioner that on a stated day a stated person approved the conduct of a stated controlled activity is evidence of the things it states. 7 Police Service Administration Act 1990 , section 10.5 (Liability for tort generally)

s 12 24 s 12 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 ‘Chapter 5A Controlled operations ‘Part 1 Preliminary ‘139 Purposes of ch 5A ‘The main purposes of this chapter are— (a) to provide for the authorisation, conduct and monitoring of controlled operations, including operations conducted in this and 1 or more other jurisdictions, for the purpose of obtaining evidence that may lead to the prosecution of persons for particular offences and that involve or may involve conduct for which participants in the operation would, apart from this chapter, be criminally responsible; and (b) to facilitate the recognition of things done in relation to controlled operations authorised under laws of other jurisdictions corresponding to this chapter; and (c) to ensure, as far as practicable, only appropriately trained persons may act as participants in authorised operations; and (d) to ensure a person who may act as a participant in an authorised operation engages in otherwise unlawful activities only as part of the authorised operation; and (e) to provide appropriate protection from civil and criminal liability for persons acting under this chapter; and (f) to clarify the status of evidence obtained by participants in authorised operations. ‘140 Definitions for ch 5A ‘In this chapter— authorised operation means a controlled operation for which an authority is in force.

s 12 25 s 12 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 authority means an authority in force under part 3, 8 and includes any variation of an authority. civilian participant in an authorised operation means a participant in the operation who is not a law enforcement officer. committee means the controlled operations committee established under section 143. 9 conduct includes any act or omission. controlled conduct means conduct for which a person would, apart from section 169 or 176, 10 be criminally responsible. controlled operation means an operation that— (a) is conducted, or intended to be conducted, for the purpose of obtaining evidence that may lead to the prosecution of a person for a relevant offence; and (b) involves, or may involve, controlled conduct. corresponding authorised operation means an operation in the nature of a controlled operation that is authorised by or under the provisions of a corresponding law. corresponding authority means an authority authorising a controlled operation, within the meaning of a corresponding law, that is in force under the corresponding law. corresponding participant means a person who is authorised by a corresponding authority to participate in a corresponding authorised operation. criminal activity means conduct that involves the commission of an offence by 1 or more persons. formal application see section 150(2)(a). 11 formal authority see section 156(1)(a). 12 8 Part 3 (Authorisation of controlled operations) 9 Section 143 (Establishment of controlled operations committee) 10 Section 169 (Protection from criminal responsibility for controlled conduct during authorised operations) or 176 (Recognition of corresponding authorities) 11 Section 150 (Application for authority to conduct controlled operation) 12 Section 156 (Form of authority)

s 12 26 s 12 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 formal variation application see section 159(3)(a). 13 formal variation of authority see section 164(1)(a). 14 illicit goods means goods the possession of which is a contravention of the law of this jurisdiction. inspection entity , for a law enforcement agency, means— (a) for the police service—the independent member of the committee; or (b) for the CMC—the parliamentary commissioner. law enforcement participant in an authorised operation— (a) generally—means a participant in the operation who is a law enforcement officer; and (b) for an authorised operation being conducted for the CMC—includes a participant in the operation who is a law enforcement officer of a declared agency engaged by the CMC for the operation. participant in an authorised operation means a person who is authorised under this chapter to engage in controlled conduct for the purposes of the operation. principal law enforcement officer for an authorised operation means the law enforcement officer who is responsible for the conduct of the operation. relevant offence means— (a) a seven year imprisonment offence; or (b) an indictable offence included in schedule 2. report entity , for a law enforcement agency, means— (a) for the police service—the independent member of the committee; or (b) for the CMC—the parliamentary commissioner. suspect means a person reasonably suspected of having committed or being likely to have committed, or of 13 Section 159 (Application for variation of authority) 14 Section 164 (Way to vary authority)

s 12 27 s 12 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 committing or being likely to be committing, a relevant offence. urgent application see section 150(2)(b). 15 urgent authority see section 156(1)(b). 16 urgent variation application see section 159(3)(b). 17 urgent variation of authority see section 164(1)(b). 18 ‘141 Relationship to other laws and matters ‘(1) This chapter is not intended to affect any other law of this jurisdiction that authorises, controls or monitors the conduct of operations entirely within this jurisdiction— (a) that are for the purpose of obtaining evidence that may lead to the prosecution of a person for a relevant offence; and (b) that involve, or may involve, conduct for which participants in the operation would otherwise be criminally responsible. ‘(2) Also, this chapter does not affect the Crime and MisconductAct 2001 , chapter 3, part 6A. 19 ‘(3) Also, this chapter is not intended to affect the investigation of minor matters or investigative activities in Queensland that, by their nature, can not be planned but involve the participation of law enforcement officers in activities that may be unlawful. ‘(4) Subject to subsections (1) to (3), a controlled operation may be approved only under this chapter. ‘(5) A function conferred in relation to the activities of the CMC under this chapter is only conferred for the purpose of a function conferred on the CMC under the Crime and 15 Section 150 (Application for authority to conduct controlled operation) 16 Section 156 (Form of authority) 17 Section 159 (Application for variation of authority) 18 Section 164 (Way to vary authority) 19 Crime and Misconduct Act 2001 , chapter 3 (Powers), part 6A (Controlled operations and controlled activities for misconduct offences)

s 12 28 s 12 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 Misconduct Act 2001 relating to major crime as defined under that Act. ‘(6) In deciding whether evidence should be admitted or excluded in any proceeding, the fact that the evidence was obtained as a result of a person engaging in criminal activity is to be disregarded if— (a) the person was a participant or corresponding participant acting in the course of an authorised operation or corresponding authorised operation; and (b) the criminal activity was— (i) controlled conduct as defined under this chapter or controlled conduct as defined under a corresponding law; or (ii) conduct for which the person is not criminally responsible because of section 169(2) or a corresponding provision of a corresponding law. 20 ‘142 When a controlled operation is conducted in this jurisdiction ‘For this chapter, a controlled operation in relation to a relevant offence is taken to be conducted in this jurisdiction, whether or not it is also conducted in another jurisdiction, if a participant in the operation is a law enforcement officer of this jurisdiction. Note — This provision is intended to cover the situation where an officer of this jurisdiction is conducting an operation in another jurisdiction for the purposes of investigating an offence of this jurisdiction, for example, a Queensland officer is investigating a conspiracy to import drugs into Queensland from New South Wales, and the operation is to be conducted entirely in New South Wales. 20 Section 169 (Protection from criminal responsibility for controlled conduct during authorised operations)

s 12 29 s 12 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 ‘Part 2 Controlled operations committee ‘Division 1 Establishment ‘143 Establishment of controlled operations committee ‘(1) The controlled operations committee is established. ‘(2) The committee must include— (a) an independent member; and (b) the commissioner or the commissioner’s nominee; and (c) the CMC chairperson or the chairperson’s nominee. ‘(3) The committee may also include anyone else the commissioner considers has appropriate knowledge or experience relevant to the performance of the committee’s functions. ‘144 Independent member ‘(1) The Minister may appoint a retired Supreme Court or District Court judge to be the independent member of the committee. ‘(2) Before appointing the independent member, the Minister must consult with the Premier and the Attorney-General about the proposed appointment. ‘145 Acting independent member ‘(1) The Minister may appoint a retired Supreme Court or District Court judge to act as the independent member— (a) during any vacancy in the office; or (b) during any period, or all periods, when the independent member is absent from duty or from the State or, for another reason, can not perform the duties of the office.

s 12 30 s 12 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 ‘(2) Before appointing the acting independent member, the Minister must consult with the Premier and the Attorney-General about the proposed appointment. ‘Division 2 Functions, business and recommendations ‘146 Committee functions ‘The committee has the following functions— (a) to consider, and make recommendations about, applications referred to the committee by a chief executive officer for— (i) an authority to conduct a controlled operation; or (ii) variation of an authority for a controlled operation; (b) any other function conferred on it under this or another Act. ‘147 Committee business ‘(1) The committee may conduct its business only if the independent member is present. ‘(2) The committee may otherwise conduct its business, including its meetings, in the way it considers appropriate. ‘(3) The independent member is the chairperson of the committee. ‘(4) The chairperson must record the committee recommendations in the way the chairperson considers appropriate. ‘148 Committee recommendations ‘(1) After considering an application and any other relevant material referred to it by a chief executive officer, the committee may recommend that the officer grant or refuse to grant authority for a particular controlled operation. ‘(2) However, the committee may recommend the grant of authority for a controlled operation only if satisfied, having

s 12 31 s 12 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 regard to the nature and seriousness of the offence being or to be investigated, it is appropriate for persons to engage in controlled conduct for the purposes of gathering evidence that may lead to the conviction of a person for the offence. ‘Division 3 Protection ‘149 Protection for committee members ‘(1) A member of the committee does not incur civil liability for an act done, or omission made, under this chapter. ‘(2) If subsection (1) prevents a civil liability attaching to a member of the committee, the liability attaches instead to the State. ‘(3) Also, a member of the committee does not incur criminal liability for an act done, or omission made in accordance with an authority given for a controlled operation under this chapter because of a recommendation made by the committee. ‘Part 3 Authorisation of controlled operations ‘Division 1 Procedure for authorising controlled operations ‘150 Application for authority to conduct controlled operation ‘(1) A law enforcement officer of a law enforcement agency may apply to the chief executive officer of the agency for authority to conduct a controlled operation on behalf of the agency. ‘(2) An application for an authority may be made— (a) by way of a written document signed by the applicant (a formal application ); or

s 12 32 s 12 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 (b) if the applicant reasonably believes that the delay caused by making a formal application may affect the success of the operation—orally in person or under section 451 21 (an urgent application ). ‘(3) Nothing in this part prevents an application for an authority being made for a controlled operation that has been the subject of a previous application, but in that case the subsequent application must be a formal application. ‘(4) In an application, whether formal or urgent, the applicant must— (a) provide sufficient information to enable the chief executive officer to decide whether or not to grant the application; and (b) state— (i) whether or not the proposed operation, or any other controlled operation in relation to the same criminal activity, has been the subject of an earlier application for an authority or variation of an authority; and (ii) if the proposed operation, or any other controlled operation in relation to the same criminal activity, has been the subject of an earlier application for an authority or variation of an authority, whether or not the authority was given or variation granted; and (iii) if the authority was given, the type of controlled operation authorised. ‘(5) In particular, the information mentioned in subsection (4)(a) must include the following for the proposed operation— (a) an identifying name or number; (b) a description of the criminal activity in relation to which it is proposed to conduct the operation; 21 Section 451 (Obtaining warrants, orders and authorities, etc., by telephone or similar facility)

s 12 33 s 12 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 (c) the name of each person who it is intended will act as a participant in the operation; (d) a precise description of the controlled conduct a civilian participant will be required to engage in for the operation; (e) a general description of the controlled conduct a law enforcement participant will be required to engage in for the operation. ‘(6) The chief executive officer may require the applicant to give additional information about the proposed controlled operation the chief executive officer considers appropriate for consideration of the application. ‘(7) As soon as practicable after making an urgent application, the applicant must make a record in writing of the application and give a copy of it to the chief executive officer. Note — The chief executive officer may delegate powers under this section—see part 6, division 1. 22 ‘151 Application must be referred to committee ‘(1) The chief executive officer must refer the application to the committee without deciding the application. ‘(2) However, if the chief executive officer considers the application does not have enough merit to justify referring it to the committee, the chief executive officer may refuse to refer the application to the committee. ‘(3) This section is subject to sections 152 and 153. ‘152 Particular CMC controlled operations ‘(1) This section applies to an application made to the CMC chairperson for authority to conduct a controlled operation if a person to be investigated by the CMC under the proposed controlled operation is or may be a police officer. 22 Part 6 (General), division 1 (Delegation)

s 12 34 s 12 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 ‘(2) The chairperson may grant the authority without referring the application to the committee but, before granting the authority, the chairperson must consult with the independent member and obtain the independent member’s agreement to the proposed operation. ‘(3) However, the chairperson may grant an authority on an urgent application made to the chairperson without complying with subsection (2), but must consult with the independent member about the controlled operation as soon as possible after granting the authority. ‘(4) Sections 154 and 155(2) do not apply to an application under this section. ‘153 Procedure in urgent circumstances other than if s 152 applies ‘(1) This section applies to an urgent application for authority to conduct a controlled operation made to a chief executive officer. ‘(2) However, this section does not apply if section 152 applies. ‘(3) The chief executive officer may grant the authority without referring the application to the committee, but must refer the application to the committee as soon as practicable after granting the authority. ‘(4) Sections 154 and 155(2) do not apply to an application under this section. ‘(5) The committee may consider the application as if the application had not been granted. ‘(6) The chief executive officer must consider the committee’s recommendations on the application but is not bound by the recommendations. ‘154 Deciding application ‘After considering an application for authority to conduct a controlled operation, any additional information given under section 150(6), and any recommendations of the committee, the chief executive officer—

s 12 35 s 12 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 (a) may authorise the operation by granting the authority, with or without conditions; or (b) may refuse the application. Note — The chief executive officer may delegate powers under this section—see part 6, division 1. ‘155 Matters to be taken into account ‘(1) An authority to conduct a controlled operation may not be granted unless the chief executive officer is satisfied on reasonable grounds— (a) that a relevant offence has been, is being, or is likely to be committed; and (b) that the nature and extent of the suspected criminal activity justifies the conduct of a controlled operation— (i) in this jurisdiction; or (ii) in this jurisdiction and a participating jurisdiction, if the controlled operation will be or is likely to be conducted in those jurisdictions; and (c) that any unlawful conduct involved in conducting the operation will be limited to the maximum extent consistent with conducting an effective controlled operation; and (d) that the operation will be conducted in a way that will minimise the risk of more illicit goods being under the control of persons, other than law enforcement officers, at the end of the operation than are reasonably necessary to enable the officers to achieve the purpose of the controlled operation; and (e) that the proposed controlled conduct will be capable of being accounted for in a way that will enable the reporting requirements of part 5 23 to be complied with; and 23 Part 5 (Compliance and monitoring)

s 12 36 s 12 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 (f) that the operation will not be conducted in a way that makes it likely for a person to be induced to commit an offence against a law of any jurisdiction or the Commonwealth that the person would not otherwise have intended to commit; and (g) that any conduct involved in the operation will not— (i) seriously endanger the health or safety of any person; or (ii) cause the death of, or serious injury to, any person; or (iii) involve the commission of a sexual offence against any person; or (iv) result in serious loss of or serious damage to property, other than illicit goods; and (h) that any role given to a civilian participant in the operation is not one that could be adequately performed by a law enforcement officer; and (i) that any proposed participant in the operation has received appropriate training for the purpose. Note — The chief executive officer may delegate powers under this section—see part 6, division 1. ‘(2) Also, the chief executive officer must not grant authority for a controlled operation unless the committee has recommended that the authority be granted. ‘156 Form of authority ‘(1) An authority to conduct a controlled operation may be granted— (a) by way of a written document, signed by the chief executive officer (a formal authority ); or (b) if the chief executive officer is satisfied that the delay caused by granting a formal authority may affect the

s 12 37 s 12 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 success of the operation—orally in person or under section 452 24 (an urgent authority ). ‘(2) This part does not stop an authority being granted for a controlled operation that has been the subject of a previous authority, but in that case the subsequent authority must be a formal authority. ‘(3) An authority, whether formal or urgent, must— (a) state an identifying name or number for the operation; and (b) state the name and rank or position of the person granting the authority; and (c) state the name of the principal law enforcement officer for the operation and, if the principal law enforcement officer is not the applicant for the authority, the name of the applicant; and (d) state whether the application was a formal application or an urgent application; and (e) identify each person who may engage in controlled conduct for the purposes of the operation; and (f) state the participating jurisdiction in which the controlled conduct is, or is likely to be, engaged in; and (g) identify the nature of the criminal activity, including the suspected relevant offences, in relation to which the controlled conduct is to be engaged in; and (h) identify— (i) in relation to the law enforcement participants, the nature of the controlled conduct that those participants may engage in; and (ii) in relation to the civilian participants, the particular controlled conduct, if any, that each of the participants may engage in; and (i) identify, to the extent known, any suspect; and 24 Section 452 (Steps after issue of prescribed authority)

s 12 38 s 12 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 (j) state the period of validity of the authority, of not more than 6 months for a formal authority or 7 days for an urgent authority; and (k) state any conditions to which the conduct of the operation is subject; and (l) state the date and time when the authority is granted; and (m) identify, to the extent known— (i) the nature and quantity of any illicit goods that will be involved in the operation; and (ii) the route through which those goods will pass in the course of the operation. ‘(4) A person is sufficiently identified for subsection (3)(e) if the person is identified— (a) by an assumed name under which the person is operating; or (b) by a code name or code number; if the assumed name, code name or code number can be matched to the person’s identity. ‘(5) The chief executive officer must ensure that written notes are kept of the particulars mentioned in subsection (3) for each urgent authority and issue a written authority to the applicant as soon as practicable. Note — The chief executive officer may delegate powers under this section—see part 6, division 1. ‘157 Duration of authority ‘Unless it is sooner cancelled, an authority has effect for the period of validity stated in it under section 156(3)(j).

s 12 39 s 12 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 ‘Division 2 Variation and cancellation of authorities ‘158 Variation of authority ‘(1) The chief executive officer may vary an authority granted by the chief executive officer— (a) at any time on the chief executive officer’s own initiative; or (b) on application under section 159. ‘(2) However, a variation can not be made that has the effect of extending the period of validity of an urgent authority. Note — The chief executive officer may delegate powers under this section—see part 6, division 1. 25 ‘159 Application for variation of authority ‘(1) The principal law enforcement officer for an authorised operation, or any other law enforcement officer on behalf of the principal law enforcement officer, may apply to the chief executive officer for a variation of authority for any 1 or more of the following purposes— (a) to extend the period of validity of the authority, other than as provided by section 158(2); (b) to authorise additional or alternative persons to engage in controlled conduct for the purposes of the operation; (c) to authorise participants in the operation to engage in additional or alternative controlled conduct; (d) to identify additional suspects, to the extent known. ‘(2) More than 1 application for a variation may be made in relation to the same authority, but no single variation may extend the period of validity of an authority for more than 6 months at a time. 25 Part 6 (General), division 1 (Delegation)

s 12 40 s 12 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 ‘(3) An application for a variation of an authority may be made— (a) by way of a written document signed by the applicant (a formal variation application ); or (b) if the applicant reasonably believes that the delay caused by making a formal application for variation may affect the success of the operation—orally in person or under section 451 26 (an urgent variation application ). ‘(4) In an application, whether formal or urgent, the applicant must state— (a) sufficient information to enable the chief executive officer to decide whether or not to grant the application; and (b) whether or not the proposed variation, or any other variation in relation to the same authorised operation, has been the subject of an earlier application for a variation; and (c) if the proposed variation, or any other variation in relation to the same authorised operation, has been the subject of an earlier application for a variation— (i) whether or not the variation was granted; and (ii) if the variation was granted, the type of variation granted. ‘(5) The chief executive officer may require the applicant to give additional information about the proposed variation the chief executive officer considers appropriate for consideration of the application. ‘160 Variation must be referred to committee ‘(1) The chief executive officer must refer the proposed variation to the committee without deciding it, whether the chief executive officer is acting under section 158(1)(a) or (b). 27 26 Section 451 (Obtaining warrants, orders and authorities, etc., by telephone or similar facility) 27 Section 158 (Variation of authority)

s 12 41 s 12 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 ‘(2) However, if— (a) the chief executive officer is acting under section 158(1)(b); and (b) the chief executive officer considers the application does not have enough merit to justify referring it to the committee; the chief executive officer may refuse to refer the application to the committee. ‘(3) This section is subject to sections 161 and 162. ‘161 Particular CMC controlled operations ‘(1) This section applies if— (a) an application for the variation of an authority for a controlled operation is made to the CMC chairperson under section 159; 28 and (b) the chairperson had granted the authority because the operation related to a person who was or who might be a police officer. ‘(2) The chairperson may vary the authority without referring the application to the committee but, before varying the authority, the chairperson must consult with the independent member and obtain the independent member’s agreement to the proposed variation. ‘(3) However, the chairperson may vary an authority on an application made to the chairperson in urgent circumstances without complying with subsection (2), but must consult with the independent member about the variation as soon as possible after granting it. 28 Section 159 (Application for variation of authority)

s 12 42 s 12 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 ‘162 Procedure in urgent circumstances other than if s 161 applies ‘(1) This section applies to an application for the variation of an authority for a controlled operation made to a chief executive officer in urgent circumstances. ‘(2) However, this section does not apply if section 161 applies. ‘(3) The chief executive officer may grant the application without referring it to the committee, but must refer the application to the committee as soon as practicable after granting it. ‘(4) The committee may consider the application as if the application had not been granted. ‘(5) Section 163(1) and (3) do not apply to the grant of a variation of an authority under this section. ‘(6) The chief executive officer must consider the committee’s recommendations on the application but is not bound by the recommendations. ‘(7) A variation under subsection (3) may only take effect for a maximum period of 7 days decided by the chief executive officer. ‘163 Deciding the application to vary the authority ‘(1) After considering an application for a variation of authority, any additional information given under section 159(5), 29 and any recommendations of the committee, the chief executive officer— (a) may vary the authority in accordance with the application, with or without conditions; or (b) may refuse the application. ‘(2) Section 155(1) 30 applies to an application for a variation of authority under this division in the same way as it applies to an application for authority under section 150. 31 29 Section 159 (Application for variation of authority) 30 Section 155 (Matters to be taken into account) 31 Section 154 (Application for authority to conduct controlled operation)

s 12 43 s 12 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 ‘(3) Without limiting subsection (2), a variation of an authority may not be granted— (a) unless the chief executive officer is satisfied on reasonable grounds that the variation will not authorise a significant change to the nature of the authorised operation concerned; and (b) unless the committee has recommended the application be granted. ‘164 Way to vary authority ‘(1) An authority may be varied, on application or otherwise, only— (a) by way of a written document signed by the chief executive officer (a formal variation of authority ); or (b) if the person granting the variation is satisfied that the delay caused by granting a formal variation of authority may affect the success of the operation—orally in person or under section 452 32 (an urgent variation of authority ). ‘(2) The chief executive officer— (a) must ensure that written notes are kept of — (i) the date and time when the authority was varied; and (ii) the identity of the law enforcement officer to whom the variation of authority was granted; and (b) must, as soon as practicable, prepare and give to the applicant a written document that complies with section 165 . Note — The chief executive may delegate powers under this section—see part 6, division 1. 33 32 Section 452 (Steps after issue of prescribed authority) 33 Part 6 (General), division 1 (Delegation)

s 12 44 s 12 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 ‘165 Form of variation of authority ‘A variation of authority, whether formal or urgent, must state— (a) an identifying name or number for the operation; and (b) the name and rank or position of the person granting the variation of authority; and (c) the date and time when the authority was varied; and (d) the provision of this chapter under which the variation was made; and (e) the period for which the variation has effect; and (f) if the variation is made under section 159 34 — (i) the name of the applicant; and (ii) whether the application was a formal variation application or an urgent variation application; and (g) a description of the variation having regard to the purposes mentioned in section 159(1) for which the application was made. ‘166 Cancellation of authority ‘(1) The chief executive officer may, by notice in writing given to the principal law enforcement officer for an authorised operation, cancel the authority at any time and for any reason. ‘(2) Without limiting subsection (1), the chief executive officer may cancel an authority for an authorised operation at any time at the request of the principal law enforcement officer for the operation. ‘(3) Cancellation of an authority for a controlled operation takes effect at the time the notice is given or at the later time stated in the notice. Note — The chief executive officer may delegate powers under this section—see part 6, division 1. 34 Section 159 (Application for variation of authority)

s 12 45 s 12 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 ‘Division 3 Effect of authority ‘167 Effect of authority ‘(1) While it has effect, an authority for a controlled operation— (a) authorises each law enforcement participant to engage in the controlled conduct stated in the authority in relation to the law enforcement participants; and (b) authorises each civilian participant, if any, to engage in the particular controlled conduct, if any, stated in the authority in relation to that participant; and (c) authorises each participant to engage in that conduct in this jurisdiction or any participating jurisdiction, subject to the corresponding law of the participating jurisdiction. ‘(2) The authority to engage in controlled conduct given to a participant cannot be delegated to any other person. ‘168 Defect in authority ‘An application for authority or variation of authority, and any authority or variation of authority granted on the basis of that type of application, is not invalidated by any defect, other than a defect that affects the application, authority or variation in a material particular.

s 12 46 s 12 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 ‘Part 4 Conduct of controlled operations ‘Division 1 Controlled conduct engaged in for controlled operations ‘169 Protection from criminal responsibility for controlled conduct during authorised operations ‘(1) Despite any other Act or law of this jurisdiction, a participant who engages in conduct, whether in this jurisdiction or elsewhere, in an authorised operation in the course of, and for the purposes of, the operation, is not, if engaging in that conduct is an offence, criminally responsible for the offence, if— (a) the conduct is authorised by, and is engaged in, in accordance with, the authority for the operation; and (b) the conduct does not involve the participant intentionally inducing a person to commit an offence under a law of any jurisdiction or the Commonwealth that the person would not otherwise have intended to commit; and (c) the conduct does not involve the participant engaging in any conduct that is likely to— (i) cause the death of, or serious injury to, any person; or (ii) involve the commission of a sexual offence against any person; and (d) if the participant is a civilian participant—the participant acts in accordance with the instructions of a law enforcement officer. ‘(2) Also, a law enforcement officer is not criminally responsible for conduct that, because of an authorised operation, was reasonably necessary to— (a) protect the safety of any person; or

s 12 47 s 12 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 (b) protect the identity of a participant; or (c) take advantage of an opportunity to gather evidence about a relevant offence not mentioned in the authority. ‘(3) However, subsection (2) does not relieve a law enforcement officer from criminal responsibility for conduct if the conduct results in— (a) injury to, or the death of, a person; or (b) serious damage to property; or (c) a serious loss of property; or (d) a person being encouraged or induced by the officer to engage in criminal activity of a kind the person could not reasonably be expected to have engaged in if not encouraged or induced by the officer to engage in it. ‘170 Indemnification of participants against civil liability ‘(1) This section applies to a law enforcement agency if a controlled operation has been authorised by the chief executive officer of the agency under section 152, 153 or 154. 35 ‘(2) The law enforcement agency must indemnify a participant in the authorised operation against any civil liability, including reasonable costs, the participant incurs because of conduct the participant engages in if— (a) the participant engages in the conduct in the course of, and for the purposes of, the operation in accordance with the authority for the operation; and (b) the conduct does not involve the participant intentionally inducing a person to commit an offence under a law of any jurisdiction or the Commonwealth that the person would not otherwise have intended to commit; and 35 Section 152 (Particular CMC controlled operations), 153 (Procedure in urgent circumstances other than if s 152 applies) or 154 (Deciding application)

s 12 48 s 12 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 (c) the conduct does not involve the participant engaging in any conduct that is likely to— (i) cause the death of, or serious injury to, any person; or (ii) involve the commission of a sexual offence against any person; and (d) if the participant is a civilian participant—the participant acts in accordance with the instructions of a law enforcement officer; and (e) the requirements, if any, stated under a regulation have been met. ‘171 Effect of ss 169–170 on other laws relating to criminal investigation ‘Sections 169 and 170 36 do not apply to a person’s conduct that is, or could have been, authorised under this Act, apart from this chapter or another law of this jurisdiction, about the following— (a) arrest or detention of individuals; (b) searches of individuals; (c) entry onto, or searches or inspection of, premises; (d) searches, inspections or seizures of other property; (e) forensic procedures; (f) electronic surveillance devices; (g) identification procedures; (h) the acquisition or use of assumed identities; (i) any other matter about powers of criminal investigation. 36 Sections 169 (Protection from criminal responsibility for controlled conduct during authorised operations) and 170 (Indemnification of participants against civil liability)

s 69 215 s 69 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 (e) a person who, as part of a controlled operation, provides a covert operative with help, including by giving the covert operative things necessary for the purposes of the controlled operation; (f) a person who authorised a controlled activity; (g) a person who is or was authorised under this part to engage in a controlled activity. ‘(2) A relevant person does not incur civil liability for an act done, or omission made, under this part. ‘(3) If subsection (2) prevents a civil liability attaching to the person, the liability attaches instead to the State. ‘(4) Also, a relevant person does not incur criminal liability for an act done, or omission made— (a) in accordance with an approval given for a controlled operation; or (b) in accordance with— (i) an authority given for a controlled activity; or (ii) the commission’s policy about controlled activities. ‘(5) In addition, a relevant person who is a police officer or a commission officer does not incur criminal liability for an act done, or omission made, that, because of a controlled operation, was reasonably necessary for— (a) protecting the safety of any person; or (b) protecting the identity of a covert operative; or (c) taking advantage of an opportunity to gather evidence in relation to a misconduct offence not mentioned in the approval. ‘(6) However, subsection (5) does not relieve a police officer or a commission officer from criminal liability for an act done or omission made if the act or omission results in— (b) injury to, or the death of, a person; or (b) serious damage to property; or

s 69 216 s 69 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 (c) a serious loss of property; or (d) someone being encouraged or induced by a covert operative to engage in criminal activity of a kind the person could not reasonably be expected to have engaged in if not encouraged or induced by the covert operative to engage in it. ‘(7) This section does not limit the Police Service AdministrationAct 1990 , section 10.5. 172 ‘146L Admissibility of evidence obtained through controlled operation ‘It is declared that evidence gathered because of a controlled operation or controlled activity is not inadmissible only because it was obtained by a person while engaging in an unlawful act if the unlawful act was authorised under this part. ‘146M Evidentiary provision ‘(1) In a proceeding, a certificate of the chairperson stating any of the following is evidence of the things it states— (a) at a stated time a stated person was an approving officer for this Act; (b) at a stated time a stated person was a covert operative; (c) on a stated day a stated person approved the conduct of a stated controlled operation or controlled activity; (d) on a stated day a stated person varied an approval for a stated controlled operation in a stated way. ‘(2) For subsection (1)(b), it is enough to state an assumed name or code name in the certificate if the actual identity of the covert operative is included in a register kept for the purpose by the chairperson. 172 Police Service Administration Act 1990 , section 10.5 (Liability for tort generally)

s 70 217 s 71 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 ‘146N Powers not to be delegated ‘(1) Powers of an approving officer under this part may not be delegated. ‘(2) Also, powers of the chairperson or an assistant commissioner under section 146I may not be delegated. ‘(3) Subsections (1) and (2) apply despite any other Act.’. 70 Amendment of s 317 (Powers of the parliamentary commissioner) Section 317— insert — ‘(7) The parliamentary commissioner may delegate any of the parliamentary commissioner’s powers under the PolicePowers and Responsibilities Act 2000 , chapter 5A or 5C 173 as inspection entity under that Act to a legal practitioner engaged by the Speaker under section 315(2).’. 71 Insertion of new ch 8, pt 2, hdg Chapter 8, part 2, heading— omit, insert — ‘Part 2 Transitional provisions for Crime and Misconduct Act2001’. 173 Police Powers and Responsibilities Act 2000 , chapter 5A (Controlled operations) or 5C (Surveillance device warrants)

s 72 218 s 72 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 72 Insertion of new ch 8, pt 3 After section 375B— insert— ‘Part 3 Transitional provisions for Cross-Border Law Enforcement Legislation Amendment Act 2005 ‘376 Definitions for pt 3 ‘In this part— amendment Act means the Cross-Border Law Enforcement Legislation Amendment Act 2005 . applied provisions means the PolicePowersandResponsibilitiesAct2000 , chapter 5A, part 2, as applied by new section 138. commencement day means the day on which section 69 174 of the amendment Act commences. existing approving officer means an approving officer mentioned in former section 173(2)(b) of the PolicePowersand Responsibilities Act 2000 . existing controlled operation approval means an approval given by an existing approving officer under former section 177 of the Police Powers and Responsibilities Act 2000 for a controlled operation in relation to a suspected misconduct offence. existing controlled operation urgent approval means an approval for a controlled operation in relation to a suspected misconduct offence given by— (a) the chairperson under former section 175 of the PolicePowers and Responsibilities Act 2000 ; or 174 Section 69 (Insertion of new ch 3, pt 6A) of the amendment Act

s 72 219 s 72 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 (b) an existing approving officer under former section 176 of the Police Powers and Responsibilities Act 2000 . existing covert operative means a commission officer or another person who is named in an existing controlled operation approval as a covert operative for the controlled operation to which the approval relates. former , of a provision of the PolicePowersandResponsibilitiesAct2000 mentioned in this part, means the provision to which the reference relates is a provision of the pre-amended Act. new , of a provision mentioned in this part, means the provision to which the reference relates is a provision of the post-amended Act. post-amended Act means this Act as in force from the commencement day, pre-amended Act means the PolicePowersandResponsibilities Act 2000 as in force immediately before the commencement of section 12 of the amendment Act. ‘377 Transitional provisions for pre-commencement day referrals to committee ‘(1) A referred application that was not considered by the committee under former chapter 5, part 2, division 2 of the Police Powers and Responsibilities Act 2000 may continue to be considered by the committee under the applied provisions. ‘(2) In this section— referred application means an application for either of the following that was referred to the committee by an approving officer under former chapter 5, part 2, division 2 of the PolicePowers and Responsibilities Act 2000 — (a) approval to conduct a controlled operation in relation to a suspected misconduct offence; (b) variation of an approval to conduct a controlled operation in relation to a suspected misconduct offence.

s 72 220 s 72 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 ‘378 Transitional provisions for controlled operations ‘(1) An existing controlled operation approval that was in force immediately before the commencement day and relates to a suspected misconduct offence continues in force from that day in accordance with its terms as if it were an approval given under new section 143. ‘(2) An existing controlled operation urgent approval that was in force immediately before the commencement day and relates to a suspected misconduct offence continues in force from that day in accordance with its terms as if it were an urgent approval given under new section 143. ‘379 Transitional provision for pre-commencement day recommendations ‘A recommendation made by the committee under former chapter 5, part 2, division 2 of the PolicePowersandResponsibilitiesAct2000 and not acted upon before the commencement day is taken, for this Act, to be a recommendation made by the committee under the applied provisions. ‘380 Transitional provision for covert operatives ‘A person named as a covert operative in an existing controlled operation approval continued in force under section 378 is taken, for this Act, to be a covert operative named in an approval given under this Act. ‘381 Transitional provisions for authorities for birth certificates ‘(1) This section applies to an authority given under former section 186 of the PolicePowersandResponsibilitiesAct2000 to create a birth certificate to help conceal the identity of a covert operative for a controlled operation relating to a suspected misconduct offence. ‘(2) The authority continues in force as an authority given under new section 146F.

s 73 221 s 73 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 ‘(3) A birth certificate created in accordance with an authority continued in force under subsection (2)— (a) is taken to have been created under new section 146G; and (b) may continue to be used for the purpose for which it was created. ‘382 Identity documents other than birth certificates ‘(1) This section applies to a document created in accordance with former section 189 of the Police Powers and ResponsibilitiesAct2000 in relation to a controlled operation relating to a suspected misconduct offence. ‘(2) New section 146H(3) to (7) apply to the document as if it had been produced under a request under new section 146H(2). 175 ’. 73 Amendment of sch 2 (Dictionary) (1) Schedule 2, affected by bankruptcy action, class A surveillance device, class B surveillance device , declared law enforcement agency and surveillance warrant— omit . (2) Schedule 2— insert — ‘ approving officer see section 139(2). 176 controlled activity see section 146I(1)(b). 177 controlled operation see section 139(1). 175 Section 146H (Special provisions about concealing identities of covert operatives) 176 Section 139 (Application for approval) 177 Section 146I (Authorised controlled activities)

s 73 222 s 73 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 covert operative means a commission officer or another person named in an approval under section 144 178 as a covert operative. declared agency means an entity prescribed under a regulation as a declared agency for this Act. independent member , of the committee, means the independent member of the controlled operations committee under the Police Powers and Responsibilities Act 2000 . insolvent under administration see the Corporations Act, section 9. misconduct offence means alleged or suspected criminal conduct that may be— (a) official misconduct; or (b) misconduct under the Police Service Administration Act1990 . otherwise unlawful activity means an unlawful act or omission of a person for which— (a) because of chapter 3, part 6A 179 it would be unlawful for the person to do or omit; or (b) because of chapter 3, part 6A it would be lawful for the person to do or omit. surveillance warrant see section 121. 180 (3) Schedule 2, definition commission officer — insert — ‘(g) for chapter 3, part 6A—a person mentioned in paragraph (a), (b), (c), (d), (e) or (f) or an officer or employee of a declared agency.’. 178 Section 144 (What approval must state) 179 Chapter 3 (Powers), part 6A (Controlled operations and controlled activities for misconduct offences) 180 Section 121 (Surveillance warrant applications)

s 74 223 s 74 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 (4) Schedule 2, definition ineligible person , paragraph (b)— omit, insert— ‘(b) a person who is an insolvent under administration;’. Part 6 Minor and consequential amendments 74 Amendment of other Acts Schedule 4 amends the Acts it mentions.

224 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 Schedule 1 Minor and consequential amendments of Police Powersand Responsibilities Act 2000 section 3 1 Chapter 4, part 1, divisions 1 to 3, headings, ‘ Division ’— omit, insert — ‘Part’. 2 Chapter 4, heading and chapter 4, part 1, heading appearing immediately after the chapter heading— omit, insert — ‘Chapter 4 Monitoring and suspension orders ’. 3 Section 115, heading, ‘pt 1’— omit, insert — ‘ch 4’. 4 Section 115, ‘In this part’— omit, insert — ‘In this chapter’.

225 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 Schedule 1 (continued) 5 Chapter 4 (Covert evidence gathering powers), part 2 (Surveillance powers), division 6 (Covert searches), heading— omit, insert — ‘Chapter 4A Covert searches’. 6 Section 147A, heading, ‘div 6’— omit, insert — ‘ch 4A’. 7 Section 147A, as amended by amendment 6, and sections 148 to 156— renumber as sections 122 to 131. 8 Chapter 4, part 2, division 6, as renumbered by amendment 5 as chapter 4A— relocate immediately after section 121F. 9 Sections 318G(1)(a), 318I(2)(c), 318J(1)(b), 318ZY(1) and (3), 398(2), 399(2), (3) and (4), 414(4), 481(1), schedule 4, definition function of the police service , ‘law enforcement’— omit . 10 Section 320, ‘ relevant offences ’— omit, insert — ‘ chapter 8B offences ’.

226 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 Schedule 1 (continued) 11 Section 320(2), 321, 322(1), 324(3) and (5), 329(1)(a), (2)(a) and (3), ‘relevant offence’— omit, insert — ‘chapter 8B offence’. 12 Schedule 4, definition covert search powers , ‘section 155’— omit, insert — ‘section 130’. 13 Schedule 4, definition covert search warrant , ‘section 148’— omit, insert — ‘section 123’. 14 Schedule 4, definition financial institution — omit, insert — ‘ financial institution — (a) generally—includes cash dealer; and (b) for chapter 4, see section115. 181 ’. 15 Schedule 4, definition relevant person , paragraph (a), from ‘for a’— omit, insert — ‘or a magistrate for a surveillance device warrant—see section 197ZO; and’. 181 Section 115 (Meaning of financial institution for ch 4 )

227 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 Schedule 1 (continued) 16 Schedule 4, definition relevant person , paragraph (b), from ‘magistrate’— omit, insert — ‘judge or a magistrate for a retrieval warrant—see section 197ZW; or’. 17 Schedule 4, definition relevant person , paragraph (c), ‘section 149’— omit, insert — ‘section 124’. 18 Schedule 4, definition terrorism — omit , insert— ‘ terrorism , for chapter 4A, see section 122(4).’. 19 Schedule 4, definition terrorist act — omit , insert— ‘ terrorist act , for chapter 4A, see section 122.’.

228 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 Schedule 2 Minor amendments of WitnessProtection Act 2000 section 59 1 Sections 14(2)(a) and 38(1)(h), ‘protected person’— omit, insert — ‘protected witness’. 2 Section 38(2) and (3), ‘relevant proceeding’— omit, insert — ‘proceeding’. 3 Part 5, before section 53— insert — ‘Division 1 Transitional provisions for Act No. 56 of 2000’.

229 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 Schedule 3 Minor and consequential amendments of Crime andMisconduct Act 2001 section 67 1 Section 120, heading, ‘divs 2–5’— omit, insert — ‘ divs 2–3 ’. 2 Section 120, ‘divisions 2 to 5’— omit, insert — ‘divisions 2 and 3’. 3 Section 121(1), ‘major crime or’— omit . 4 Section 121(4)(b) and (c)— omit . 5 Section 121(4), note appearing after paragraph (e)— omit . 6 Section 121(4)(d) and (e)— renumber as section 121(4)(b) and (c). 7 Section 121(6), ‘(4)(e)’— omit, insert — ‘(4)(c)’.

230 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 Schedule 3 (continued) 8 Section 123, ‘major crime or’— omit . 9 Section 123(b), from ‘if’ to ‘is sought,’— omit . 10 Section 124(1)(a), ‘major crime or’— omit . 11 Section 124(1)(b), ‘commission of the major crime or’— omit . 12 Section 124(2), ‘class A’— omit . 13 Section 125(d) and (e)— omit . 14 Section 125(f) and (g)— renumber as section 125(d) and (e). 15 Section 126(2), ‘major crime or’, first mention— omit . 16 Section 126(2), ‘another major crime or’— omit . 17 Section 127(2), ‘major crime or’— omit .

231 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 Schedule 3 (continued) 18 Section 128(a), ‘for a class A surveillance device—’— omit . 19 Section 128(b) to (e)— omit, insert — ‘(b) power to install and use a surveillance device to intercept and record private conversations; (c) power to remove a thing to another place to install a surveillance device in the thing; (d) power to use an assistant to translate or interpret conversations intercepted under the warrant;’. 20 Section 128(h), ‘,whether of the same or a different kind,’— omit . 21 Section 128(f) to (i)— renumber as section 128(e) to (h). 22 Chapter 3, part 6, divisions 3 and 4— omit . 23 Chapter 3, part 6, division 5— renumber as chapter 3, part 6, division 3. 24 Section 144(1)(a), ‘or a magistrate’— omit . 25 Section 144(1)(b)— omit .

232 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 Schedule 3 (continued) 26 Section 144(1)(c)— omit, insert — ‘(b) an order made under an application mentioned in paragraph (a).’. 27 Section 145(2)(a), ‘or magistrate’— omit . 28 Section 145(2)(b)(ii)— omit . 29 Section 145(2)(b)(iii)— renumber as section 145(2)(b)(ii). 30 Section 145(2)(c)— omit . 31 Section 145(2)(d) to (e)— renumber as section 145(2)(c) to (e). 32 Section 145(2)(f)(i), ‘major crime or’— omit . 33 Section 145(2)(g), ‘law enforcement’— omit . 34 Section 145(2)(h)(iii)— omit .

233 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 Schedule 3 (continued) 35 Section 145(2)(h)(iv)— renumber as section 145(2)(h)(iii). 36 Sections 144 and 145, as amended, and 146— renumber as sections 129 to 131. 37 Section 166(6), definition prescribed information , paragraph (a)— insert — ‘(viii)approvals for controlled operations or variations of approvals for controlled operations under this Act; or’.

234 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 Schedule 4 Other Acts amended section 74 Criminal Code 1 Section 228H(2)— omit, insert — ‘(2) However, subsection (1) does not apply to the extent that the person’s conduct consists of engaging in conduct or an activity that— (a) is authorised under— (i) the PolicePowersandResponsibilitiesAct2000 , chapter 5 or 5A; 182 or (ii) the CrimeandMisconductAct2001 , chapter 3, part 6A; 183 or (b) is otherwise directed to gaining evidence of the commission of an offence against a particular person.’. 2 Section 228H(3), definition chapter 5 criminal activity— omit . 182 Police Powers and Responsibilities Act 2000 , chapter 5 (Controlled activities) or 5A (Controlled operations) 183 Crime and Misconduct Act 2001 , chapter 3 (Powers), part 6A (Controlled operations and controlled activities for misconduct offences)

235 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 Schedule 4 (continued) Freedom of Information Act 1992 1 Schedule 3, entry for Police Powers and ResponsibilitiesAct 2000 — omit, insert — ‘ Police Powers and Responsibilities Act 2000 , sections 191, 197ZK, 321 and 401 184 ’. Police Service Administration Act 1990 1 Section 1.4, definition covert operative — omit, insert — ‘ operative see section 5A.2.’. 2 Section 5.17(17), definition terrorist act , ‘section 147A’— omit, insert — ‘section 122’. 3 Section 5A.2, definition authorised person , paragraph (c), ‘covert’— omit . 184 Police Powers and Responsibilities Act 2000 , section 191 (Relationship to other laws and matters), 197ZK (Relationship to other laws and matters), 321 (Certain Acts do not apply to this chapter) and 401 (Particular Acts do not apply to this division)

236 Cross-Border Law Enforcement Legislation Amendment Act 2005 No. 45, 2005 Schedule 4 (continued) 4 Section 5A.2, definition covert operative — omit, insert — ‘ operative means a police officer who is— (a) a participant in an authorised operation under the PolicePowers and Responsibilities Act 2000 , chapter 5A; 185 or (b) a covert operative for a controlled operation under the Crime and Misconduct Act 2001 , chapter 3, part 6A. 186 ’. 5 Section 5A.8(d), ‘a covert’— omit, insert — ‘an’. 6 Section 5A.9(4), example 1, ‘ a covert ’— omit, insert — ‘ an ’. 7 Section 5A.13(1)(a)(ii) and (iii), ‘a covert’— omit, insert — ‘an’. 8 Section 10.1(1)(c), ‘under this Act’— omit, insert — ‘under this or another Act’. 185 Police Powers and Responsibilities Act 2000 , chapter 5A (Controlled operations) 186 Crime and Misconduct Act 2001 , chapter 3 (Powers), part 6A (Controlled operations and controlled operations for misconduct offences)

237 Cross-Border Law Enforcement LegislationAmendment Act 2005 Schedule 4 (continued) Prostitution Act 1999 1 Section 75(1), from ‘chapter’— omit, insert — ‘chapter 5 or 5A. 187 ’. © State of Queensland 2005 No. 45, 2005 187 Police Powers and Responsibilities Act 2000 , chapter 5 (Controlled activities) or 5A (Controlled operations)