Undercover Police in Australia: Laws and Limitations - Criminal Defence Lawyers Australia

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Undercover cop operations are a powerful but controversial tool granting officers significant discretion to infiltrate criminal networks through the use of deception. Undercover police officers are members of law enforcement who operate under concealed identity to infiltrate criminal organizations, gathering intelligence and obtaining evidence of criminal activities. A practice that our criminal lawyers more frequently see practiced by police in drug cases, particularly drug importation and drug supply and human trafficking.

Table Of Contents

Undercover Police Operations
What Are the Laws Governing Undercover Cop Operations
Do Undercover Cops Have to Identify Themselves in Australia?
Powers Exercised During Undercover Operations
Limitations on Undercover Operations
Oversight Mechanisms and Accountability

Undercover Police Operations

An undercover police operation is a covert law enforcement strategy where officers disguise their identities to infiltrate criminal gangs, gather intelligence or obtain evidence of criminal activity.

Undercover operations in Australia have increased substantially since the early 2000s as a direct result of concerns regarding terrorism and multijurisdictional crime including drug trafficking and human trafficking.

Beyond assuming a fake identity, undercover officers may also engage in activities that would ordinarily constitute criminal offences. These operations, known as ‘controlled operations,’ require a separate authorisation process from a senior official. Controlled operations are subject to oversight mechanisms designed to prevent police overreach and ensure compliance with legal standards.

What Are the Laws Governing Undercover Cop Operations

Undercover operations, including assumed identities and controlled operations, are strictly regulated by law at a Federal and State level.

For Federal agencies, including the Australian Federal Police, Australian Crime Commission and Australian Border Force, the laws regarding undercover operations are outlined under the Crimes Act 1914 (Cth).

Rules Regarding Undercover Police In NSW & Federal Commonwealth

Further, each State and Territory law enforcement agency has its own separate rules regarding assumed identities and controlled operations as part of undercover police work. For example, in NSW the Law Enforcement (Controlled Operations) Act 1997 (NSW) outlines the rules regarding assumed identities and controlled operations undertaken by members of NSW Police.

All law enforcement agencies in Australia have processes to create an assumed identity for the purposes of an undercover operation. For example, section 15KA of the Crimes Act 1914 (Cth) allows Federal law enforcement to apply to a relevant ‘chief officer’ of each agency for the creation of an assumed identity for operations. If approved, government agencies may issue false identity documents such as driver’s licences, birth certificates, and financial records.

Approval requires consideration of:

The necessity of the assumed identity for investigation, intelligence-gathering, or security purposes.
The risk of misuse and whether safeguards are in place.
Whether a civilian’s involvement is essential and impractical for a law enforcement officer to perform.

Further approval processes are required for undercover operations that may constitute ‘controlled operations’ in which officers engage in conduct that would typically constitute an offence.

For all law enforcement agencies in Australia, approval for controlled operations must come from senior agency officials, usually the relevant Commissioner for each agency. For example, under section 15GH of the Crimes Act 1914 (Cth), an application for authority to conduct a controlled operation must be approved by a senior-ranking authorising officer within the relevant law enforcement agency to ensure oversight and accountability. For the Australian Federal Police (AFP), this includes the Commissioner, a Deputy Commissioner, or a superintendent or higher-ranking member.

In considering the application, the senior official must consider:

Whether a serious offence (carrying at least three years’ imprisonment) has been, is being, or is likely to be committed.
Whether any unlawful conduct by officers is limited to the minimum extent necessary for the operation.
Whether the operation avoids inducing a person to commit a crime they would not have otherwise committed.
Whether it minimises the risk of harm, prevents serious criminality, and avoids unnecessary public danger.

Once authorised, section 15HA of the Act provides that officers acting within the limits of the operation’s authority are not criminally responsible for otherwise illegal acts. Further, section 15HB of the Act also indemnifies civilians from civil liability if they are participating in an approved controlled operation and follow proper procedures.

Do Undercover Cops Have to Identify Themselves in Australia?

An undercover police officer is not required to disclose their identity. The law protects police officer’s from having to disclose themselves for their safety and protection. An undercover police officer who acts within their authority will not be held criminally responsible for committing a crime while on duty in Australia.

Powers Exercised During Undercover Operations

Undercover officers, particularly those undertaking controlled operations, are granted significant powers in undertaking their duties. Common powers exercised include:

Conducting long-term surveillance on suspects, including physical observation, recording conversations, and using hidden cameras or tracking devices.
Providing false or misleading information to suspects as part of operational tactics, including fabricating criminal histories or affiliations to enhance credibility.
Assuming digital identities to interact with suspects over encrypted messaging services, forums or dark web platforms.
Arranging and conducting drug purchases or controlled deliveries of illicit goods to track and apprehend key figures in criminal networks.
Engaging in minor criminal conduct to maintain their cover, such as purchasing illicit substances or associating with organised crime figures.
Employing psychological manipulation techniques, such as fostering a sense of camaraderie or feigned loyalty to encourage targets to reveal incriminating details.

While these powers allow undercover officers to gather intelligence and disrupt criminal activities, their use is strictly regulated to prevent abuse.

Limitations on Undercover Operations

Undercover operations must be conducted in accordance with the law, including not exceeding the authority granted under an assumed identity or controlled operations approval.

Generally, undercover officers are not given authority to commit serious criminal offences (including homicide and sexual offences) whilst undercover. Further, officers are still bound by laws regarding the appropriate collection of evidence.

If evidence is obtained via an undercover operation in a manner that is illegal or improper, it may be excluded due to the operation of the Uniform Evidence Act. For example, in NSW,

Section 138 of the Evidence Act 1995 (NSW) permits courts to exclude evidence obtained through improper or illegal means. When deciding on admissibility, courts consider several factors, including:

The probative value of the evidence.
The importance of the evidence in the proceeding.
The gravity of any impropriety in obtaining the evidence.
Whether the conduct was deliberate or reckless.
Whether the evidence could have been obtained lawfully.

An undercover operation may be deemed illegal if it was conducted without appropriate authorisation or if officers exceeded the scope of their authority.

Oversight Mechanisms and Accountability

Undercover operations are subject to strict oversight mechanisms at both a Federal, State and Territory level.

At a Federal level, the Commonwealth Ombudsman plays a key role in overseeing the use of covert, intrusive and coercive powers by law enforcement agencies. The Ombudsman’s office ensures that agencies such as the AFP, Australian Criminal Intelligence Commission (ACIC), and National Anti-Corruption Commission (NACC).

Similar oversight bodies exist at a State and Territory level. For example, in NSW, the Law Enforcement Conduct Commission (LECC) provides independent oversight of police misconduct and corruption, including improper use of undercover operations. The LECC has investigative powers to examine allegations of unlawful conduct by police officers and can conduct public hearings where serious misconduct is identified. Additionally, the NSW Ombudsman reviews controlled operations, ensuring compliance with statutory safeguards and reporting findings to Parliament.

By Jarryd Bartle and Jimmy Singh.

Published on 30/06/2025