There are two units within Victoria Police that administer authorities to conduct controlled operations pursuant to the Crimes (Controlled Operations) Act 2004:
- The Controlled Operations Registry (COR), within the Crime Department, is the primary unit responsible for the administration of controlled operations authorities.
- The Technical Projects Unit (TPU), which resides within Professional Standards Command (PSC).
As described in the Overview section of this report, the Victorian Inspectorate (VI) inspected a sample of records at Victoria Police, as allowed by the COVID-19 Omnibus Regulations. The VI’s sampling of records was restricted to the COR since it was the only Victoria Police unit to have made controlled operations records for the period available to the VI for inspection.
The only authority to conduct a controlled operation administered by PSC during the reporting period was inadvertently not made available to the VI during the relevant inspection. This oversight was identified from the VI’s review of the relevant six-monthly report it received from Victoria Police under section 38(1) of the CCO Act. This record was subsequently provided to the VI for inspection and will be reported upon in our next inspection report. While PSC was still compliant with the reporting requirements of section 38 of the CCO Act, only limited information about this operation is included in our report on the work and activities of Victoria Police because the section 38 report provided less detail on the PSC operation than was provided for the COR operations.
The VI inspected 54 controlled operations files out of a total of 88 for the reporting period with Victoria Police’s COR on 26–28 October 2020. The inspected files included 50 issued authorities – one of which was an urgent authority – and four applications refused by an Assistant Commissioner.1
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 officer (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.
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 made one urgent application for an authority to conduct a controlled operation during the period in accordance with sections 12 and 14 of the CCO Act.
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 officer 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).
The authorities granted by Victoria Police met all these requirements, including the urgent authority granted during the period.
Each variation to an authority complied with section 24 of the CCO Act, whereby each variation:
- identified the authorised operation, as well as the name and rank or position of the person varying the authority;
- stated the name of the applicant and whether it was a formal or urgent variation application; and
- stated the date and time the authority was varied and described the variation.
In all cases, Victoria Police cancelled authorities for a controlled operation in writing, in accordance with section 25 of the CCO Act.
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.
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 officer of Victoria Police, which is 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.
The VI did however identify in multiple controlled operations files a discrepancy between the date recorded in the general register for when the report was made under section 37 of the CCO Act and the date stamped on the physical record. Enquiries made with Victoria Police’s COR following the inspection determined the general register, rather than the date stamped on the report, accurately records the date each report was made. The COR explained these reports are generated and completed in the database that also forms the general register. The date shown is auto generated, which avoids any potential data entry errors.
The COR acknowledged it is important to ensure the date given in the general register correlates with the date shown on the corresponding report and consequently advised the VI it had made a minor change within the application it uses to produce these reports to enable the dates to properly align.
Transparency and cooperation
The VI considers an agency’s transparency, its cooperation during inspection, 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, in particular where the VI raised a question with respect to how it records the date for making its reports under section 37 of the CCO Act. In response to identified inconsistencies in how this date is recorded, Victoria Police’s COR introduced a process change for the metadata so that each printed report is automatically stamped in the footer with the same date that appears in the general register, irrespective of when the print-out is made. The VI regards this action as indicative of a strong compliance culture, especially since it relates to a best practice matter.
Did Victoria Police self-disclose compliance issues?
Victoria Police did not make any compliance-related disclosures during the period.
Were issues identified at previous inspections addressed?
The VI re-inspected three controlled operations files during the period and confirmed Victoria Police made the following corrections to its general register and reports made previously under section 37 of the CCO Act:
- The general register kept for three authorities was amended. Corrections to the register included: the date shown for variation approval (two occasions), the date the authorised operation was completed (one occasion) and the date and time the authorised operation commenced (one occasion).
- The report made under section 37 of the CCO Act was corrected for two authorities. On one occasion the authority end date was amended, and on another occasion, the authorisation commencement date was corrected.
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.
While Victoria Police submitted its report for the 1 January to 30 June 2020 period in accordance with the statutory timeframes, the report for the 1 July to 31 December 2019 period was received on 20 March 2020 (due 29 February 2020). Victoria Police explained this error was the result of having earlier aligned its reporting process to the VI inspections calendar, which had since changed to allow the VI to inspect all ceased records at once for the 1 July to 31 December period. As a result of the VI conducting an inspection in early 2020 rather than late 2019, Victoria Police’s internal processes caused it to make a late report.
Victoria Police has advised the VI it has since instituted a new process of setting multiple recurring Outlook email reminders for all staff and managers on when to commence preparing these reports, as well as the submission due date. The VI is supportive of these changes and expects no future recurrence of this type of issue.
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 2019 to 30 June 2020 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 for 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) for consideration.
Victoria Police granted a total of 83 authorities during 2019-20, representing a slight increase from the previous 12-month period but still lower than the four-year average.
|Number of authorities granted||112||111||76||83|
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. One urgent application was made, and subsequently granted, by Victoria Police during 2019-20.
A total of 41 authorities to conduct a controlled operation were varied on at least one occasion by Victoria Police. Frequently, an authority is varied on multiple occasions. While 26 of the total 41 authorities were varied once, 12 were varied on two occasions and a further three authorities were varied on three or more occasions.
Four 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 2019-20 (i.e. including authorities commenced prior to the relevant reporting period) continued the trend to be lower than previous periods.
|Number of active authorities||147||137||112||107|
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 85 authorised operations that ceased during the 2019-20 period. Of this number, 83 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 involves civilian participants in some of its controlled operations, however in the vast majority of cases only law enforcement participants engage in such conduct.
|Law Enforcement only||58||68||51||61|
|Law Enforcement and Civilian||8||4||6||2|
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. Additionally, the one authority with PSC is not included.
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, however, the number of authorities not involving any controlled conduct has decreased as a proportion of all authorities granted.
|With controlled conduct||82||77||61||66|
|Without controlled conduct||37||24||21||18|
Note: These figures are based on authorities that ceased during the period. The one authority administered by PSC is not included.
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 85 active authorities that ceased during 2019–20, three authorised operations conducted for the period reported either loss of, or serious damage to, property or personal injury.