South Australian Consolidated Acts South Australian Consolidated Acts (1) In this Act,
unless the contrary intention appears—
"acquire" an assumed identity, means acquire evidence of the identity, and
includes taking steps towards acquiring evidence of the identity;
"agency" means—
(a) an
issuing agency; or
(b) a
law enforcement agency,
as the case requires;
"approval" means an approval under Part 2;
"approved undercover operations" means—
(a)
undercover operations approved under Part 2; or
(b)
undercover operations approved—
(i)
under the repealed Act; or
(ii)
by a law enforcement authority before the commencement of
the repealed Act that are of a type that could reasonably have been approved
under the repealed Act if the repealed Act had been in force when the
operations commenced;
"assumed identity"—see Part 3;
"assumed name"—
(a) of a
local operative—has the meaning given in section 33(1)(d)(i);
(b) of
an interstate operative—means the name (if any) stated in the
interstate witness identity protection certificate as the
interstate operative's assumed name;
"authorised civilian" means a person (other than a law enforcement officer)
who is authorised under an authority to acquire or use an assumed identity;
"authorised officer" means a law enforcement officer who is authorised under
an authority to acquire or use an assumed identity;
"authorised participant" in approved undercover operations means—
(a) a
person authorised under the terms of the approval to take part in the
operations; or
(b) in
the case of operations that began before the commencement of Part 2 but after
the commencement of the repealed Act—a person authorised under the terms
of an approval under the repealed Act to take part in the operations; or
(c) in
the case of operations that began before the commencement of the
repealed Act—a person authorised by a law enforcement authority to take
part in the operations;
"authorised person" means—
(a) an
authorised civilian; or
(b) an
authorised officer;
"authority" means an authority under Part 3;
"chief officer"—
(a) of a
law enforcement agency—
(i)
in relation to SA Police—means the Commissioner of
Police;
(ii)
in relation to the Australian Crime
Commission—means the Chief Executive Officer of the Australian
Crime Commission;
(b) of
an issuing agency—means the chief executive officer (however described)
of the agency;
"conduct" includes any act or omission;
"corresponding approval" means an approval under a corresponding law approving
undercover operations;
"corresponding authority" means—
(a) an
authority under a corresponding law to acquire or use an assumed identity in
this State; or
(b) an
authority under a corresponding law to request the production of evidence of
an assumed identity;
"corresponding law" means a law of another jurisdiction declared by the
regulations to correspond to this Act, or to a Part (or Parts) of this Act;
"court" includes a tribunal or body or person invested by law with judicial or
quasi-judicial powers, or with authority to make an inquiry or to receive
evidence;
"court name" for an operative (whether a local or an interstate operative) in
relation to proceedings, means a name, other than the operative's real name,
or code used to identify the operative in the proceedings;
"criminal activity" means conduct that involves the commission of an offence
by 1 or more persons;
"doing" a thing includes failing to do the thing;
"evidence" of identity, means a document or other thing that evidences or
indicates, or can be used to evidence or indicate, a person's identity or an
aspect of a person's identity;
"false representation" does not include a representation made under an
authority under this Act;
"government issuing agency", in relation to an authority, means any of the
following named in the authority that issues evidence of identity:
(a) a
person or body (whether incorporated or not) that performs any function of the
government of this State;
(b) a
person or body (whether incorporated or not) prescribed by the regulations for
the purposes of this definition;
"interstate operative" means a person in respect of whom an
interstate witness identity protection certificate is in force;
"interstate witness identity protection certificate" means a certificate given
under a provision of a corresponding law that corresponds to section 31;
"investigation" means an investigation in relation to criminal activity,
including an investigation extending beyond this State;
"issuing agency" means—
(a) a
government issuing agency; or
(b) a
non-government issuing agency;
"jurisdiction" means the Commonwealth or a State or Territory of the
Commonwealth;
"law enforcement agency" means—
(a)
SA Police; or
(b) the
Australian Crime Commission;
"law enforcement officer" means—
(a) in
relation to SA Police—a police officer;
(b) in
relation to the Australian Crime Commission—a member of staff of the
Australian Crime Commission,
and includes a person who is seconded to a law enforcement agency, including
(but not limited to) a police officer (however described) of another
jurisdiction;
"local operative" means a person who is or was—
(a) an
authorised participant under Part 2; or
(b) an
authorised person under Part 3;
"non-government issuing agency", in relation to an authority, means a person,
body or entity (other than a government issuing agency) named in the authority
that issues evidence of identity;
"officer" of an agency includes a person employed or engaged in the agency;
"operative" means—
(a) an
interstate operative; or
(b) a
local operative,
as the case requires;
"participating jurisdiction" means a jurisdiction in which a corresponding law
is in force;
"party" to proceedings means—
(a) in
relation to criminal proceedings—the prosecutor and each accused person;
(b) in
relation to civil proceedings—each person who is a party to the
proceedings;
(c) in
relation to any other proceedings—each person who may appear or give
evidence in the proceedings;
"presiding officer", in relation to proceedings, means the person constituting
the court, or presiding over the court, in the proceedings;
"proceedings" means any criminal, civil or other proceeding or inquiry,
reference or examination in which, by law or consent of parties, evidence is
or may be given, and includes an arbitration;
"professional misconduct" means misconduct or a breach of discipline—
(a)
under the Police Act 1998 ; or
(b)
under a law of another jurisdiction that corresponds to the Police
Act 1998 ; or
(c)
under a law of the Commonwealth that governs the conduct of members of staff
of the Australian Crime Commission,
but does not mean misconduct or a breach of discipline—
(d) that
constitutes minor misconduct, or is the subject of an informal inquiry only,
under the Police Act 1998 ; or
(e) that
constitutes minor misconduct (however referred to), or is the subject of an
informal inquiry only, under any of the laws referred to in paragraph (b)
or (c);
"repealed Act" means the Criminal Law (Undercover Operations) Act 1995
repealed under Schedule 1;
"SA Police" means South Australia Police;
"serious criminal behaviour" means behaviour involving the commission
of—
(a) an
indictable offence; or
(b) an
offence against the Controlled Substances Act 1984 ; or
(c) an
offence against section 52, 53, 72 or 74 of the Fisheries Management
Act 2007 ; or
(d) an
offence against section 63 or 75 of the Lottery and Gaming Act 1936 ; or
(e) an
offence against section 47(1), (2) or (4), 48(1), 48A(1), 51(1) or 60(1) of
the National Parks and Wildlife Act 1972 ;
"supervisor" of an authorised civilian means the law enforcement officer who
supervises, or is to supervise, the acquisition or use of an assumed identity
by the authorised civilian;
"undercover operations" means operations (which may include conduct that is
apart from this Act illegal) of which the intended purpose is to provide
persons engaging or about to engage in serious criminal behaviour an
opportunity to—
(a)
manifest that behaviour; or
(b)
provide other evidence of that behaviour;
"use" an assumed identity, includes representing (whether expressly or
impliedly, or by saying or doing something) the identity to be real when it is
not;
"witness identity protection certificate" means a certificate given under
section 31 in respect of a local operative in relation to proceedings.
(2) For the purposes
of this Act, a person is reckless about whether or not an act has been done
if—
(a) the
person is aware of a substantial risk that the act has been done; and
(b)
having regard to the circumstances known to the person, it is unjustifiable to
take the risk.