This report presents the findings of the Victorian Inspectorate (the VI) on the work and activities of the five Victorian agencies authorised to conduct controlled operations. It includes the results of the VI’s inspection of controlled operations records belonging to these agencies, as well as an assessment of the comprehensiveness and adequacy of their six-monthly reports to the VI. The five agencies are:

• Department of Environment, Land, Water and Planning (DELWP)
• Game Management Authority (GMA)
• Independent Broad-based Anti-corruption Commission (IBAC)
• Victorian Fisheries Authority (VFA)
• Victoria Police

The following Acts authorise these agencies to conduct controlled operations for the purpose of obtaining evidence that may lead to the prosecution of persons for offences (with the applicable agencies listed in parentheses):

• Crimes (Controlled Operations) Act 2004 (CCO Act)(Victoria Police and IBAC)
• Wildlife Act 1975 (Wildlife Act)(DELWP and GMA)
• Fisheries Act 1995 (Fisheries Act)(VFA)

The provisions of these Acts are generally similar; however, the Wildlife Act and Fisheries Act limit the types of offences that may be investigated and the operational scope of a controlled operation. Only Victoria Police and IBAC may apply for and be granted an urgent authority to conduct a controlled operation, and only in limited circumstances. Additionally, controlled operations undertaken by Victoria Police and IBAC are classified into cross-border, local major and local minor operations.

Law enforcement officers of these agencies may apply to the chief officer of the agency for authority to conduct a controlled operation. In the case of Victoria Police, the power to authorise controlled conduct (that is, conduct that would otherwise constitute a criminal offence) under an authority may be delegated by the Chief Commissioner to specific classes of officers. Among Victorian law enforcement agencies, almost all controlled operations are conducted by Victoria Police under the CCO Act.

The role of the VI is to independently oversight agencies authorised to conduct controlled operations. The VI is required to inspect from time to time, and at least once every 12 months, the records of agencies that have exercised their powers to conduct controlled operations in order to determine the level of statutory compliance achieved by the agency and its law enforcement officers. The VI reports on the work and activities of each agency on an annual basis to each House of Parliament, as well as the Attorney-General and chief officer of each agency.

The VI notes in this report the cooperative and transparent engagement by the officers of each agency whose records were subject to our inspection. While the VI reports on some errors, no significant compliance issues were identified. The VI commends the remedial actions taken by the relevant agencies to address the identified errors.

This report gives the inspection results for authorities that ceased, as well as the work and activities undertaken by the agency, during the 1 July 2020 to 30 June 2021 period – the ‘reporting period’. The VI’s biannual inspections deal with records that ceased during the preceding six-month period, and therefore this report gives findings for inspections conducted during the 2021 calendar year. The VI has not made any recommendations as a result of its inspections of controlled operations records for the reporting period.

The legislative framework that enables Victorian law enforcement agencies to conduct controlled operations imposes strict controls on their use of controlled authorities, as well as record-keeping and reporting obligations.

Our role

Through its inspections program, the VI performs an independent oversight function to determine the extent of compliance achieved by Victorian law enforcement agencies authorised to conduct controlled operations and their officers.
In order to fulfil our requirement to report to Parliament annually on the work and activities of each agency, the VI conducts six-monthly inspections of completed controlled operations files. The VI inspects hard copy documents and electronic registers to confirm agencies are keeping proper records connected with authorities to conduct a controlled operation and meeting prescribed reporting obligations.

How we assess compliance

We assess compliance based on the records made available to us at the time of inspection and our discussions with the relevant agencies, as well as the action they take in response to any issues we have raised.

The VI also assesses the reports it receives from the chief officer of each agency, which give specific details about the authorised operations conducted by the agency against statutory criteria. For the 1 July 2020 to 30 June 2021 period, each agency was required to make two reports to the VI in accordance with the following timeframes:

• First report – due no later than 28 February 2021;
• Second report – due no later than 31 August 2021.

These reports cover controlled operations conducted from 1 July to 31 December 2020 and 1 January to 30 June 2021, respectively.

How we report on compliance

To ensure procedural fairness, each agency is given an opportunity to comment on the VI’s findings from our inspections and furnish additional records that might assist our assessment. Following this process, the inspection results are considered finalised.

Included in this report are findings resulting from our inspection and assessment of records and documents relating to authorities to conduct controlled operations and comments on the comprehensiveness and adequacy of biannual reports provided by the agencies. We provide more detail where there is a finding of non-compliance. The VI may, in its discretion, not report on administrative issues (such as typographical or transposition errors) or instances of non-compliance where the consequences are negligible.

In accordance with the legislative framework governing the use of controlled operations by Victorian law enforcement agencies, the VI must provide a copy of this report to the chief officer of each agency to facilitate the redaction of information where, in the chief officer’s opinion, to include that information could reasonably be expected to –

1. endanger a person’s safety; or
2. prejudice an investigation or prosecution; or
3. compromise operational activities or methodologies of the agency.

Our consultation with Victoria Police (the only agency at which operational records were inspected) has resulted in no information been excluded from the report to be tabled in Parliament.

The following sections of this report provide the results of the VI’s inspection of controlled operations records that were either cancelled or expired from 1 July 2020 to 30 June 2021 for each Victorian law enforcement agency with the authority to conduct controlled operations. This report also includes comments on the comprehensiveness and adequacy of reports provided to the VI by each agency’s chief officer.

DELWP’s Major Operations and Investigations Unit administers authorisations to conduct controlled operations that can be made under the Wildlife Act.

Inspection findings

The VI did not inspect any DELWP files as DELWP did not make an application for an authority to conduct a controlled operation during the period covered by this report, and nor were there any historical issues that needed to be addressed.

In this report, the VI’s assessment of the extent of DELWP’s compliance with the Wildlife Act is limited to whether the reporting requirements of section 74O of the Act were met.

Comprehensiveness and adequacy of the secretary's report

Section 74O(1) of the Wildlife Act requires DELWP to report to the VI, as soon as practicable after 30 June and 31 December and no more than two months after each date, on the details of its authorised operations conducted during the preceding six months.

While DELWP submitted the report for the 1 July to 31 December 2020 period in accordance with the statutory timeframe, the report for 1 January to 30 June 2021 period (due 31 August 2021) was received late—on 13 September 2021. The VI acknowledges DELWP’s delay in making this report was the result of a staff change and it has since provided the VI with multiple contacts to ensure it can respond promptly to any correspondence from the VI. The VI expects no future recurrence of this type of issue.

Each report made to the VI pursuant to section 74O of the Act met all reporting criteria and stated that no controlled operations were undertaken by DELWP during the six-month period covered by the report.

Work and activities of DELWP

DELWP conducted no controlled operations during the period 1 July 2020 to 30 June 2021. No controlled operations have been undertaken by DELWP for at least the past eight years.

GMA may conduct controlled operations pursuant to Part IX of the Wildlife Act.

Inspection findings

GMA has yet to make an application to conduct a controlled operation. The VI therefore did not inspect any GMA files during the period covered by this report.

The VI’s assessment of the extent of GMA’s compliance with the Wildlife Act is limited to assessing whether the reporting requirements of section 74OA of the Act were met.

Comprehensiveness and adequacy of the GMA's reports

Section 74OA(1) of the Wildlife Act requires GMA to report to the VI, as soon as practicable after 30 June and 31 December and no more than two months after each date, on the details of its authorised operations conducted during the preceding six months. The VI received both reports within the required timeframes.

Each report made to the VI pursuant to section 74OA of the Act stated that no controlled operations were undertaken by GMA during the six-monthly period covered by the report.

Work and activities of the GMA

GMA conducted no controlled operations during the period 1 July 2020 to 30 June 2021.

IBAC's Legal Compliance Unit administers authorities to conduct controlled operations made under the CCO Act.

Inspection findings

The VI did not inspect any IBAC controlled operations files as IBAC did not make an application for an authority to conduct a controlled operation during the period covered by this report, and nor were there any historical issues that needed to be addressed.

In this report, the VI’s assessment of the extent of IBAC’s compliance with the CCO Act is limited to assessing whether the reporting requirements of section 38 of the CCO Act were met.

Comprehensiveness and adequacy of the Chief Officer's reports

Section 38(1) of the CCO Act requires IBAC to report to the VI, as soon as practicable after 30 June and 31 December and no more than two months after each date, on the details of its authorised operations conducted during the preceding six months. The VI received both reports within the required timeframes.

Each report made to the VI pursuant to section 38 of the Act stated that no controlled operations were undertaken by IBAC during the six-month period covered by the report.

Work and activities of IBAC

IBAC conducted no authorised operations during the period 1 July 2020 to 30 June 2021. The most recent controlled operation conducted by IBAC was in early 2018.

The VFA can conduct controlled operations pursuant to Part 7A of the Fisheries Act.

Inspection findings

The VFA did not make an application for an authority to conduct a controlled operation during the period covered by this report, nor did it have an authority that expired or was cancelled during this same period. However, the VI partially inspected one controlled operations file from the previous reporting period to confirm earlier reported errors had been corrected by a supplementary report made to the CEO under section 131R of the Fisheries Act and an amendment to the general register.

The VI also reviewed and provided feedback on draft VFA procedures that deal with making an application for an authority to conduct a controlled operation. The VI commends the VFA for its work in developing more detailed and formal written procedures – and we look forward to reviewing further updates in this respect at forthcoming inspections.

Comprehensiveness and adequacy of the CEO's reports

Section 131S of the Fisheries Act requires the VFA to report to the VI, as soon as practicable after 30 June and 31 December and no more than two months after each date, on the details of its authorised operations conducted during the preceding six months. This section also specifies the details that must be included in the reports.

The VFA submitted these reports to the VI, one for the 1 July to 31 December 2020 period and the other for 1 January to 30 June 2021, in accordance with the statutory timeframes. The VI is satisfied that the reports included all required information.

Work and activities of the VFA

The VFA conducted no controlled operations during the period 1 July 2020 to 30 June 2021. Over the past five years, the number of completed controlled operations at the VFA each year has varied from zero to two.

There are two units within Victoria Police that administer authorities to conduct controlled operations pursuant to the CCO Act:

• the Controlled Operations Registry (COR), within the Crime Department, is the primary unit responsible for the administration of controlled operations authorities; and
• the Technical Projects Unit (TPU), which resides within Professional Standards Command.

Inspection findings

The VI inspected a total of 78 controlled operations files at Victoria Police for authorities that expired or were cancelled during the reporting period. The inspected files included 76 issued authorities and two applications refused by an Assistant Commissioner. These represent all authorised operations undertaken by Victoria Police that expired or were cancelled during the period. No application was made for an urgent authority.

A total of 76 files were inspected at Victoria Police’s COR over these dates: 22-24 June 2021, and 23-24 November 2021. Two files were inspected at the TPU, one on 12 May 2021 and another on 8 September 2021.

Authorities

Were applications for authorities (including urgent authorities) to conduct controlled operations (including extensions and variations) properly made?

Victoria Police is required to comply with the requirements of sections 12 and 14 of the CCO Act when making applications to conduct controlled operations.

Specifically, each application must:

• be provided in writing and signed by the applicant (unless it is an urgent application);
• contain sufficient information to enable the Chief Commissioner (or other officer delegated by instrument under section 44 of the CCO Act) to decide whether to grant the application, including that:
  • any unlawful conduct will be limited to the maximum extent consistent with conducting an effective controlled operation;
  • the risk of more illicit goods being held by non-law enforcement officers is minimised;
  • reporting requirements can be complied with;
  • the conduct of the operation is not likely to induce a person to commit an offence they would not otherwise commit;
  • any conduct will not seriously endanger the health or safety of, or cause death or serious injury to, any person, involve any sexual offence, or result in unlawful loss of or serious damage to property (other than illicit goods); and
  • the operation will only involve a civilian participant if the assigned role cannot be adequately performed by a law enforcement officer;
• state whether the proposed operation is a cross-border, local major or local minor controlled operation (that is, state the type of operation); and
• state whether any previous applications for an authority or variation have been made with respect to the same proposed operation or same criminal activity and, if so, the outcome of the previous application, as well as the type of controlled operation authorised, as applicable.

Each application must also comply with section 15, 16 or 17 of the CCO Act, depending on the type of controlled operation proposed.

The VI found that Victoria Police complied with these application requirements. The VI identified one file containing an incomplete application for an authority at its June 2021 inspection. Enquiries made with Victoria Police’s COR led to the remaining parts of the application being inspected and found compliant at the inspection completed in November 2021.

For all inspected authorities varied by Victoria Police during the period, the applications were found to have complied with sections 21 and 22 of the CCO Act.

Victoria Police did not make an urgent application for an authority to conduct a controlled operation, including variation of an authority, during the period.

Were authorities (including urgent authorities and variations) in proper form and cancellations properly made?

Authorities to conduct a controlled operation must be in writing and signed by the Chief Commissioner or other officer delegated by instrument under section 44 of the CCO Act (unless it is an urgent authority). They must specify the following matters in accordance with section 18 of the CCO Act:

• the principal law enforcement officer and each law enforcement officer or civilian participant who may engage in controlled conduct;
• whether the application was formal or urgent;
• whether it is a cross-border, local major or local minor controlled operation, and in the case of cross-border operations, the participating jurisdictions;
• the identity of each person who may engage in controlled conduct;
• the nature of controlled conduct law enforcement participants may engage in, and the particular controlled conduct permissible for civilian participants;
• the criminal activity and suspected offences targeted by the controlled conduct;
• any suspect (to the extent known);
• the period of validity of the authority (in accordance with section 19) and any conditions;
• the date and time the authority is granted; and
• the nature and quantity of any illicit goods involved in the operation, as well as the route through which they pass (to the extent known).

Each variation to an authority must comply with section 24 of the CCO Act, whereby it:

• identifies the authorised operation, as well as the name and rank or position of the person varying the authority;
• states the name of the applicant and whether it was a formal or urgent variation application; and
• states the date and time the authority was varied and describes the variation.

The authorities and variations to an authority granted by Victoria Police did not meet these requirements on four occasions.

Records

Did Victoria Police keep all records connected with authorised operations?

Victoria Police is required to keep certain records in connection with authorised operations, including:

• each formal application made for an authority to be granted or varied;
• each formal authority and variation granted;
• all written notes made in connection with the granting of an urgent authority, as well as notes connected to varying an authority, specifically, the date and time the authority was varied and the identity of relevant law enforcement officer;
• the order cancelling the authority; and
• the report made by the principal law enforcement officer.

Victoria Police complied with these record-keeping requirements.

Did Victoria Police keep a general register?

The VI found that a general register was kept by Victoria Police, as required by section 41 of the CCO Act.

The general register specified, with respect to each application made for an authority or variation of an authority (formal and urgent), the following particulars:

• date of application, and whether it was formal or urgent;
• whether it was made with respect to a cross-border, local major or local minor controlled operation; and
• whether the application was granted, refused or withdrawn, and if refused or withdrawn, the date and time that occurred.
• For each authority granted, the general register must include the following details:
• date and time it was granted, and whether it was formal or urgent;
• name and rank/position of person who granted the authority;
• whether it was a cross-border, local major or local minor controlled operation;
• each offence engaged in with respect to the controlled conduct;
• period of validity, and if cancelled, the date and time of the cancellation;
• date and time the authorised operation began, and date it was completed;
• date of the principal law enforcement officer’s report under section 37 of the CCO Act;
• if the authorised operation involved illicit goods, the nature and quantity of such goods, as well as the route through which they passed (to the extent known);
• any loss of or serious damage to property, or personal injuries, resulting from the operation; and
• for each variation of authority, the date and time it was made, whether it was formal or urgent, and the name and rank/position of person who made the variation.

The VI found that Victoria Police complied with these requirements other than with respect to an omitted date and three incorrect dates recorded in the general register.

Reports

Were Principal Law Enforcement Officers’ reports properly made?

The principal law enforcement officer is required, within two months after the completion of an authorised operation, to make a report to the Chief Commissioner. Each report must give the following details for the authorised operation:

• date and time it commenced, as well as its duration;
• whether it was a cross-border, local major or local minor controlled operation;
• the nature of the controlled conduct engaged in;
• the outcome of the operation;
• if the operation involved illicit goods, the nature and quantity of such goods, as well as the route through which they passed (to the extent known); and
• any loss of or serious damage to property, or personal injuries, resulting from the operation.

The VI found Victoria Police complied with its prescribed reporting obligations under section 37 of the CCO Act.

Transparency and cooperation

The VI considers an agency’s transparency, its cooperation during inspections, and its responsiveness to suggestions and issues to be a measure of its compliance culture.

Victoria Police was responsive and transparent during the inspection process, particularly when the VI raised questions about certain records. Victoria Police’s COR provided additional information in response to some questions raised with respect to the general register it keeps and also made timely corrections to identified errors.

Did Victoria Police self-disclose compliance issues?

Victoria Police’s COR made three compliance-related disclosures during the period. One disclosure was made in connection to an authority that omitted the date it was granted by the Assistant Commissioner. As the authority specified all requirements under section 18 of the CCO Act, this oversight related to Victoria Police’s processes and did not affect the validity of the authority.

Two other disclosures were made by Victoria Police’s COR during the period—both concerned the making of a supplementary section 37 report to the Chief Commissioner. One report gave corrected information with respect to the illicit goods involved in the controlled operation, and another was made to correct the reported nature of the controlled conduct engaged in.

Were issues identified at previous inspections addressed?

The VI re-inspected two controlled operations files during the period that each included a non-compliance issue identified at an earlier inspection. A partial re-inspection of these files confirmed Victoria Police’s COR amended the general register for each controlled operation to give the correct date the section 37 report was made by the principal law enforcement officer.

Comprehensiveness and adequacy of the Chief Officer's reports

Section 38(1) of the CCO Act requires Victoria Police to report to the VI, as soon as practicable after 30 June and 31 December and no more than two months after each date, on the details of its authorised operations conducted during the preceding six months. This section also specifies the details that must be included in the reports.

Victoria Police submitted these reports to the VI, one for the 1 July to 31 December 2020 period and the other for 1 January to 30 June 2021, in accordance with the statutory timeframes. The VI found that Victoria Police included all required information in these reports.

Work and activities of Victoria Police

To report on the work and activities of Victoria Police for the 1 July 2020 to 30 June 2021 period, the VI largely depends on the information supplied by Victoria Police in its six-monthly reports made under section 38 of the CCO Act. The information the VI obtains from its inspections is limited to files for authorities that have ceased and for which the reporting requirements have been completed during the period. Therefore, not all records for authorised operations granted by Victoria Police within a reporting period will be made available to the VI to inspect.

Applications for an authority to conduct a controlled operation at Victoria Police are made to an Assistant Commissioner (who has delegated authority in accordance with s 44 of the CCO Act).

Victoria Police granted a total of 95 authorities during 2020-21, representing an increase from the previous two reporting periods.

^{Note: These are the figures reported by Victoria Police in its Chief Officer Reports made under s 38 of the CCO Act as the number of authorities granted each financial year. They are not the same as the number of completed authorities inspected by the VI during these periods.}

Victoria Police may, in limited circumstances, make an application for an urgent authority by means of communication other than a signed written document. No such applications were made by Victoria Police during 2020-21.

A total of 54 authorities to conduct a controlled operation were varied on at least one occasion by Victoria Police. Frequently, an authority is varied on multiple occasions. Thirty two of the total 54 authorities were varied once, 16 were varied twice and a further six authorities were varied on three occasions.

Two applications for granting an authority were refused by an Assistant Commissioner during the period.

The total number of authorities with Victoria Police that were active at any time during 2020-21 (i.e. including authorities commenced prior to the relevant reporting period) has also increased from the previous two periods.

Authorised operations undertaken by Victoria Police are categorised as either local minor, local major, or cross-border controlled operations. Local minor and local major controlled operations are conducted wholly within Victoria. The former targets offending punishable by less than three years’ imprisonment whereas the latter relates to offending that may result in three or more years’ imprisonment. A cross-border controlled operation targets offending punishable by three or more years’ imprisonment and is also likely to be partially conducted in at least one jurisdiction outside Victoria that has a corresponding law in force.

In total, Victoria Police had 76 authorised operations that ceased during the 2020-21 period. Of this number, 74 were local major controlled operations, one was a local minor operation, and another was a cross-border controlled operation. The high proportion of local major controlled operations undertaken by Victoria Police is historically consistent, as shown in Table 3.

^{Note: These figures are based on authorities that ceased during the period.}

In addition to authorising law enforcement participants to engage in controlled conduct, authorities may also authorise civilian participants to engage in controlled conduct. The involvement of civilian participants in an operation is limited to circumstances where their role cannot be adequately performed by a law enforcement officer. Victoria Police infrequently involves civilian participants in its controlled operations. For the current period, only law enforcement participants engaged in controlled conduct.

^{Note: These figures are based on authorities that ceased during the period. The tally for the numbers for each period is lower than the total number of ceased authorities shown at Table 3 since controlled conduct is not engaged in under all authorities.}

In some situations, controlled conduct is not engaged in at all during the life of an authority. The absence of any controlled conduct can occur for various reasons, such as where evidence has been obtained by other means or operational priorities change. Over recent years, the number of authorities not involving any controlled conduct continues to decrease as a proportion of all authorities granted.

^{Note: These figures are based on authorities that ceased during the period.}

Victoria Police cancels only a relatively small number of its authorities in comparison with the number that are allowed to expire. This can be at least partly explained by Victoria Police granting authorities for periods significantly less than the maximum permitted. Although a local major formal authority can be valid for a period of up to three months (this being the most common type of authority granted by Victoria Police), Victoria Police typically grants authorities with a validity period of about one month only. Furthermore, extensions to the validity of these authorities are made for a period of four weeks at a time, even though up to three months at a time is permitted. This demonstrates the tight controls Victoria Police exercises over its use of controlled operations powers and its commitment to ensuring each operation does not continue longer than necessary.

^{Note: These figures are based on authorities that ceased during the period.}

Victoria Police must consider a number of matters before granting an authority to conduct a controlled operation, such as ensuring any conduct under the authority will not endanger the safety of any person or cause serious damage to property. Of the 65 completed authorities during the period that involved controlled conduct, there were no cases of any loss of or serious damage to property, or any personal injuries, as a result of an operation.