What Are The Rules Regarding Undercover Police in WA?

Covert or ‘undercover’ police operations are commonly used in WA to investigate serious crimes including drug trafficking, terrorism and homicide. However, the use of covert identities as part of an investigation, particularly where police officers pretend to be criminals, is tightly regulated under law.

The following outlines the law in WA regarding covert operations, including controversial ‘controlled operations’ and notes any defences that can apply when an undercover officer entices a person to commit a crime.

Approval of Assumed Identities

When undertaking undercover operations, police officers will need to take on an ‘assumed’ or fake identity. Section 47 and 48 of the Criminal Investigation (Covert Powers) Act 2012 (WA) regulates the approval of assumed identities.

A police officer (or a civilian in exceptional circumstances) must apply for permission to acquire and use an assumed identity to the Corruption and Crime Commission WA (CCC). If approved, various forms of falsified evidence can be created by the Commission to support the assumed identity, including fake driver’s licenses, birth certificates, Medicare cards, credit cards and other documents.

The CCC will only approve an assumed identity if they are satisfied that:

• The assumed identity is necessary for investigation, intelligence-gathering, or training.
• The risk of abuse is minimal.
• If a civilian is to use an assumed identity, it must be impossible or impracticable for a police officer to perform that role.

If a civilian is granted an assumed identity, a law enforcement supervisor must be assigned to oversee their actions.

An assumed identity will continue until it is formally cancelled by the CCC. All assumed identities must be reviewed every 12 months to determine if they are still necessary.

Committing Crimes Whilst Undercover

Whilst undertaking undercover work, police may have to engage in criminal activities. A ‘controlled operation’ is a covert law enforcement activity that may involve undercover officers engaging in conduct that would typically constitute an offence.

These operations require special authorisation by the CCC, taking into account further factors than the assumed identity authorisation. Under Section 12 of the Act, the CCC must consider the following factors before approving a controlled operation:

• Whether a relevant offence has been, is being, or is likely to be committed.
• Whether any unlawful conduct by officers will be limited to the maximum extent necessary.
• Whether the operation minimises the risk of illicit goods remaining in a person’s possession.
• Whether the operation will not induce a person to commit a crime they would not have otherwise committed.
• Whether the operation will not result in serious harm, death, sexual offences, or significant property damage.

Civilians may only be authorised to undertake controlled operations if it is impracticable for law enforcement officers to perform their role.

If a controlled operation is approved, undercover officers may engage in conduct that would otherwise be unlawful. Section 27 of the Act provides protection from criminal responsibility if:

• The conduct is authorised and carried out in accordance with the operation’s authority.
• The officer does not induce another person to commit a crime they would not have otherwise committed.
• The conduct does not endanger life, cause serious injury, or involve a sexual offence.

Further, section 28 indemnifies participants (excluding police officers) from civil liability if their conduct was authorised and followed proper procedures. This protects civilians who may be assisting in law enforcement operations from lawsuits arising from their actions.

Controlled operations are subject to strict record-keeping requirements and must report regularly to the CCC to monitor operations.

What About Entrapment?

A major concern with undercover operations is the potential for ‘entrapment’, where police induce a person to commit a crime they would not have otherwise committed.

Unlike the United States, Australia does not recognise entrapment as a legal defence. However, courts have a discretion to exclude improperly obtained evidence or stay proceedings if police conduct is deemed unfair or an abuse of process (Ridgeway v The Queen [1995] HCA 66).

Historically, courts have been fairly lenient in allowing a wide range of undercover operations, even where they would likely constitute ‘entrapment’ in the United States. For example, ‘Mr Big operations’ – a controversial police tactic in which undercover officers pose as a criminal gang to elicit confessions – has been consistently approved by the Australian High Court despite concerns it could lead to false confessions (Tofilau v The Queen [2007] HCA 39).

However, many legal scholars have raised concerns that there is insufficient oversight of undercover operations, raising the possibility that undercover tactics could induce criminal activities and undermine civil liberties.

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This post is informative only. It is not legal advice. If you have a specific legal matter you’d like to discuss, please contact us.

PLEASE NOTE: The material in this blog post is for informational use only and should not be construed as legal advice. For answers to your questions regarding this or other topics, please contact a professional legal representative.