Regulating Undercover Law Enforcement: The Australian Experience

1. Front Matter

   Pages i-xxiii

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2. Covert Investigation Law and Practice

   1. Front Matter

      Pages 1-1

      PDF

   2. Operation Decade

      • Brendon Murphy

      Pages 3-41

   3. Controlled Operations

      • Brendon Murphy

      Pages 43-77

   4. Theory and Practice of Undercover Investigations

      • Brendon Murphy

      Pages 79-99

   5. Context and Developments in Covert Investigations Regulation

      • Brendon Murphy

      Pages 101-133

   6. Problems in Covert Investigations

      • Brendon Murphy

      Pages 135-165

3. Discourses in Public Policy

   1. Front Matter

      Pages 167-167

      PDF

   2. Risk, Threat and Necropolitics

      • Brendon Murphy

      Pages 169-185

   3. The Rise of Risk in Australian Federal Legislation

      • Brendon Murphy

      Pages 187-201

   4. Legal Risk

      • Brendon Murphy

      Pages 203-234

   5. Discourses of Accountability

      • Brendon Murphy

      Pages 235-257

4. Theory and Beyond

   1. Front Matter

      Pages 259-259

      PDF

   2. Beyond the Boundaries of Risk

      • Brendon Murphy

      Pages 261-288

   3. Governmentality

      • Brendon Murphy

      Pages 289-322

   4. The Shadow of Homo Civicus

      • Brendon Murphy

      Pages 323-353

5. Back Matter

   Pages 355-370

   PDF

This book examines the way in which undercover police investigation has come to be regulated in Australia. Drawing on documentary and doctrinal legal analysis, this book investigates how, in the space of a single decade, Australian law makers set out to regulate one of the most difficult aspects of police: undercover investigation. In so doing, the Australian experience represents a paradigm model. And yet despite its success, it is a system of law and practice that has a dark side – a model of investigation to relies heavily on activities that are unlawful in the absence of authorisation. It is a model that is as much concerned with the surveillance and control of police as it is with suspected criminal conduct.

The book aims to locate the Australian experience in comparative perspective with other major common law jurisdictions (the United Kingdom, Canada and New Zealand), with a view to contrast strengths, similarities and weaknesses of these models. It is argued that the Australian model, at the pragmatic level, offers a highly successful model for regulatory structure and practice, providing a significant model for successful regulation. At the same time, the model that has been introduced raises important questions about how and why the Australian experience evolved in the way that it did, and the implications this has for the relationship between citizen and state, the judiciary and the executive, and broader questions about the protections offered by rights discourse and jurisprudence. 


This book aims to document the law, policy and practices that shape undercover investigations. In so doing, it aims to not only articulate the way in which the law regulates these activities, but also to move on to consider some of the fundamental questions linked to undercover investigations: how did regulation happen? By what means of regulation? What are the driving policy issues that give this field of law its particular complexion? What are the implications? Who gains, and who loses, by which means of power?


The book offers unique insights into a largely unknown aspect of modern covert policing, identifying a range of practices, the legal framework, controversies and powers. By locating these practices in a rich theoretical context, informed by risk and governmentality scholarship, this book offers a legal and theoretical explanation of one of the most controversial forms of policing.

• Covert regulation
• Covert policing (Australia)
• Controlled operations
• Entrapment
• Foucault
• Governmentality
• Legal theory

• Thomas More Law School, Australian Catholic University, Sydney, Australia

  Brendon Murphy

Brendon Murphy is Senior Lecturer in Law at the Thomas More Law School, Australian Catholic University. He has previously been appointed as Senior Lecturer at the University of Newcastle, and Associate Professor at the University of Canberra. As an academic, his doctoral research examined the regulation of covert investigation in Australia, with emphasis on the legal, policy and theoretical aspects of controlled operations. His PhD was given honourable mention by the Royal Society of New South Wales as an outstanding thesis in 2016. He has published widely in the field of criminal law and procedure, law and society, and legal theory. He was contributing author to National Security, Surveillance and Terror in Palgrave MacMillan’s Crime Prevention and Security Management Series, and Criminal Law Perspectives published by Cambridge University Press. He is the current serving academic member of the New South Wales Law Society’s Specialist Accreditation Board for Criminal Law.  

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