What is a controlled operation?
The significance of controlled operations in law enforcement
The investigation of organised crime
International acceptance
Judicial approval
Investigation of other crime: money laundering and the financial environment
The extent and the manner of the NCA's involvement in controlled operations
The development of controlled operations legislation
Case history: Ridgeway v The Queen
The facts
The decision
The Commonwealth's legislative response to the Ridgeway case
Legislative scheme of Part 1AB of the Crimes Act 1914
Some preliminary observations
Review of Part 1AB of the Crimes Act
States and Territories legislation
New South Wales
Review of the NSW Act
South Australia
Other States and Territories

Chapter 2: The Merits of Controlled Operations Legislation

The case for controlled operations legislation
Balances competing interests
Protection for Covert Police Operatives
Admissibility of evidence
Controls the police
Proper accountability
The case against controlled operations legislation
Law enforcement officers engaging in unlawful activities
Function creep
Entrapment
Administrative convenience
New problems
Effectiveness
Different classes of citizens
Right to a fair trial
Conclusion

Chapter 3: The Impact of the Current Legislative Regime on the Operations of the NCA

Cross jurisdictional operations
Operational problems
NCA denied power to issue certificates
Absence of uniform controlled operations coverage for covert police operatives
Evidentiary issues arising in absence of uniform legislative coverage
Coverage limited to narcotics offences
Coverage limited to certain jurisdictions
Cross jurisdictional problems in terms of Commonwealth-State differences in offences
Reform options
Option1: Enactment of uniform controlled operations legislation
Uniformity based on the NSW model?
A return to pre Ridgeway?
Conclusion

Chapter 4: The Approval Process for Controlled Operations

Introduction
The approval process: Overview issues
The approval processes under the current legislative regimes
The approval process under the Commonwealth legislation
The approval process under State legislation
New South Wales
South Australia
Victoria
Criticism of the process of in-house approvals
Arguments in favour of the in-house approval process
Criticism of the approval process: Insufficient monitoring
Options for reform
Alternative 1: External authorisation with public interest monitor involvement
The Public Interest Monitor Model
Arguments against external authorisation and PIM model
Alternative 2: Judicial authorisation with/without Public Interest Monitor involvement
Objections to judicial authorisation
Alternative 3: Tiered levels of authorisation within either or both internal or external approval process
Conclusion
NCA should be able to issue its own authorities
Grounds on which certificates are authorised:
Standard of satisfaction required by authorising officer
Section 15M(b): The target is likely to commit an offence …
Section 15M(d): Any narcotic goods will be in the possession of an officer …
The criminal activities of law enforcement officers should be proportionate to the matter under investigation

Chapter 5: Accountability

The Commonwealth legislation
State accountability regimes: South Australia and New South Wales
Criticism of current Commonwealth regime
Inadequate reporting regime
Contrary view: Public interest not served by disclosure to Parliament
Alternative systems of accountability
Fundamental guiding principle for an accountability regime
Oversight by a parliamentary committee: Complementing the Public Interest Monitor model
The New South Wales model
New South Wales model in practice
Appropriate degree of public accountability: Finding the right balance of disclosure
Ombudsman oversight: Telecommunications interception regime
Conclusion

Chapter 6: Further Aspects of Controlled Operations

Scope of the legislation
Commonwealth legislation more restrictive than State legislation
NCA needs to be able to investigate other crime
Corruption
The nature of organised crime: sophisticated, globalised and victimless
Community expectations
Constraints on law enforcement agencies to follow the money trail
Scope of protection for covert police operatives (and others)
State supply offences
Testing of covert operatives
Options for widening the scope of investigations for controlled operations
Innocent bystanders
Conclusion
Timeframe for validity of certificates
Investigations and operations may be protracted
An important safeguard
Conclusion
Retrospective authorisation
The Finlay Review
Retrospectivity would increase uncertainty about the operation of the Act
Retrospectivity would give necessary flexibility to protect covert operatives
Alternative option: judicial discretion
Retrospective authorisation could be given to escape consequences
NCA perspective
Civil liberty view
Conclusion
Civilian involvement
Classes of civilian operatives
The Commonwealth legislation
Position in the States
Arguments for extending immunity to civilians
Civilians: a valuable part of the investigation strategy
Different treatment for police and criminals
Civilians may be critical link in the criminal chain
The evidence is vulnerable
Lack of coverage for civilians affects operational decisions
Personal safety and welfare of civilian operatives
Formalising the relationship between investigator and informer
Options for reform
Prospective immunity
Prospective immunity for civilians: A role for the DPP?
Arguments against prospective immunity for civilians
Retrospective indemnity
Support at the time of sentencing
A graded system of indemnities
Concerns regarding immunising criminals
Conclusion

Supplementary statement
Supplementary Statement by Senator Natasha Stott Despoja

Appendix 1: Submissions

Appendix 2: Witnesses at Public Hearings

Appendix 3: Exhibits

Table of Contents

Street Legal
The involvement of the National Crime Authority in Controlled Operations