The Victorian Inspectorate (VI) inspected one controlled operations file at the VFA for the reporting period. The inspection of the file was postponed from 13 October 2020 to 9 March 2021. This was the only controlled operation undertaken by the VFA that expired or was cancelled during the reporting period.
Were applications for authorities to conduct controlled operations (including extensions and variations) properly made?
The VFA is required to comply with the requirements of sections 131C and 131E of the Fisheries Act for making applications for authorities to conduct controlled operations. Specifically, an application must:
- be in writing and signed by the applicant;
- contain sufficient information to enable the Chief Executive Officer (CEO) to decide whether to grant the application, including that:
- a relevant offence has been, is being or is likely to be, committed;
- the nature and extent of criminal activity justifies a controlled operation;
- 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 controlled operation will not be likely to induce a person to commit an offence they would not otherwise commit; and
- any conduct will not seriously endanger the health or safety of, or cause death or serious injury to, any person, nor result in unlawful loss of or serious damage to property (other than illicit goods);
- 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.
The VI found the VFA complied with these requirements for the one application it made during the reporting period.
The VFA made no applications for the authority to be extended or varied.
Were authorities (including variations) in proper form and cancellations properly made?
Authorities to conduct a controlled operation must be in writing, signed by the CEO and specify the following matters in accordance with section 131F of the Fisheries Act:
- the principal law enforcement officer and each law enforcement officer who may engage in controlled conduct;
- the nature of the controlled conduct the participants may engage in;
- the criminal activity and suspected offences targeted by the controlled conduct;
- any suspect (to the extent known);
- the period of validity (not exceeding three months) 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 will pass (to the extent known).
The VI found the VFA complied with these requirements except for one error made to the form of the authority.
Finding 1 – Incorrect date and time specified in the granted authority.
An authority to conduct a controlled operation is required by section 131F(1)(g) of the Fisheries Act to specify the period of validity for the authority. While the inspected authority gives a period of validity that commenced on 5 May 2020 at 3pm, it was signed – and consequently granted – on 6 May 2020 at 2.30pm. Enquiries with the VFA found this error was caused by an unexpected delay in obtaining the CEO’s authorisation. The VI nonetheless acknowledges the controlled operation commenced on 6 May 2020 when signed copies of the documents were received by the VFA’s State-wide Investigation Group, and therefore no officers of the VFA engaged in any unlawful conduct. The VFA has informed the VI it has since amended its procedures to include additional instructions in the brief to the CEO that requests the granting of an authority. The change is designed to ensure the validity period shown in the Authority accurately reflects when the CEO grants the Authority, rather than the dates proposed in the brief. The VI will inspect this procedural change at the next scheduled inspection.
The inspected authority was cancelled in writing by order of the CEO in accordance with s 131K of the Fisheries Act.
Did the VFA keep all records connected with authorised operations?
The VFA is required to keep certain records in connection with authorised controlled operations, including:
- each application made for an authority as well as variation of an authority;
- each authority and variation of authority;
- the order cancelling the authority; and
- the report made by the principal law enforcement officer to the CEO.
The VFA complied with these record-keeping requirements.
Did the VFA keep a general register?
The VI found that a general register was kept by the VFA, as required by section 131V of the Fisheries Act.
The general register specified the following particulars with respect to each application made for an authority or variation of an authority:
- the date of application, and whether it was granted, refused or withdrawn; and
- the date and time an application was refused or withdrawn, as applicable.
For each authority granted, the general register must include the following details:
- the date and time it was granted;
- each offence engaged in with respect to the controlled conduct;
- the period of validity, and if cancelled, the date and time of the cancellation;
- the date and time the authorised operation began and the date it was completed;
- the date the principal law enforcement officer made the report under section 131R of the Fisheries 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 any personal injuries, resulting from the operation; and
- for each variation of authority, the date and time it was made.
The VI identified two errors in the general register kept for the one inspected authority. These errors were made with respect to recording the date the application was made and the date the authority was granted by the CEO.
Finding 2 – Incorrect date and time recorded in the general register.
Pursuant to section 131V(2) of the Fisheries Act the general register is required to record, amongst other things, dates and times associated with each application and authority. The application was made on 6 May 2020 but the general register records this date as 24 January 2020. The general register correctly records the date (6 May 2020) the authority was granted but incorrectly gives the time as 12.30pm instead of 2.30pm. Enquiries with the VFA determined these errors were the result of transcription errors and corrections have since been made to the general register. The VFA also advised it is formalising its standard operating procedures to further strengthen its ability to comply with legislative provisions. The VI commends the VFA’s work to develop more robust procedures and looks forward to inspecting these changes, as well as the corrected general register, at the next scheduled inspection.
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 CEO. Each report must give the following details for the authorised operation:
- the date and time it commenced and its duration;
- the nature of the controlled conduct;
- 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.
While the inspected report was made within two months of completion of the authorised operation, the VI identified two errors in the information given in the report that relate to the above-mentioned matter.
Finding 3 – Incorrect information given in the report made by the principal law enforcement officer.
The report made by the principal law enforcement officer under section 131R of the Fisheries Act must include certain details for the completed authorised operation. In the case of the one report inspected for the period, the VI found two errors in the reported information. While the authorised operation began on 6 May 2020 at 2.30pm, the report incorrectly records it commenced on 5 May 2020 at 3pm. The VI notes this error repeats the error referred to at Finding 1 (page 11) for the signed authority. An additional error was identified with respect to reporting any controlled conduct under the authority. The report states no controlled conduct was engaged in, however, it further reports there was one unsuccessful attempt to sell a priority species to an unknown person. While unsuccessful, this conduct nonetheless constitutes a form of controlled conduct. In response to these findings, the VFA agreed to make a supplementary report correcting the errors identified above. The VI will inspect the corrected report at the next scheduled inspection.
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. The VFA was responsive and transparent during the inspection process, particularly when the VI raised questions about certain records.
Did the VFA self-disclose compliance issues?
The VFA did not make any self-disclosures.
Were issues identified at previous inspections addressed?
The VI re-inspected one controlled operation file from the previous reporting period and confirmed the VFA amended the general register to show the correct date the report was made under section 131R of the Fisheries Act. At the next inspection, the VI will inspect relevant records to ensure the errors identified in this inspection report have been rectified.
Comprehensiveness and adequacy of the Chief Officer'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 2019 period and the other for 1 January to 30 June 2020, 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 one authorised operation that ceased between 1 July 2019 and 30 June 2020. This figure is consistent with the historically low number of controlled operations undertaken by the VFA each year.
|Number of completed controlled operations||2||1||2||1|
No applications for the granting of an authority were refused by the VFA’s CEO.
For the one authority completed by the VFA during the reporting period, no application was made to vary it, for example, to extend the period of its validity or to authorise additional persons to engage in controlled conduct.
The VFA cancelled the authority to undertake controlled conduct ahead of its expiry date, demonstrating effective review procedures at the VFA to ensure authorities do not remain in force unnecessarily.
While the VFA reported no controlled conduct was engaged in under the authority, as explained at Finding 3 on page 13 of this report, authorised controlled conduct was undertaken.