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​​​​​​​Establishment and constitution & Law exemptions


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Establishment and constitution
Typically a LEA is established and constituted by the governing body it is supporting, and the personnel making up the LEA are from the governing body’s subjects, for example the Australian Federal Police is established and constituted by virtue of the Australian Federal Police Act 1979.

By Definition, federal LEAs can only be established by the governing body of the relevant federation, divisional and sub divisional LEAs can only be established by their relevant governing bodies, and national LEAs can only be established by the national governing body of a country.

For reasons of either logistical efficiency or policy, some divisions with a country will not establish their own LEAs but will instead make arrangements with another LEA, typically from the same country, to provide law enforcement within the division. For example, the Royal Canadian Mounted Police (RCMP) is a federal agency and is contracted by most of Canada's provinces and many municipalities to police those divisions, even though law enforcement in Canada is constitutionally a divisional responsibility. This arrangement has been achieved by formal agreement between those divisions and the RCMP and reduces the number of agencies policing the same geographical area. Similarly, the Australian Federal Police (AFP) is a federal agency and is the contracted police agency for the Australian Capital Territory. and Norfolk Island.

In circumstances where a country or division within a country is not able to establish stable or effective LEAs, typically police agencies, the country might invite other countries to provide personnel, experience, and organisational structure to constitute a LEA, for example the Regional Assistance Mission to the Solomon Islands which has a Participating Police Force working in conjunction with the Solomon Islands Police Force, or where the United Nations is already providing an administrative support capability within the country, the United Nations may directly establish and constitute a LEA on behalf of the country, for example for Timor-Leste from 1999 to 2002.

Powers and law exemptions
To enable a LEA to prevent, detect, and investigate non compliance with laws, the LEA is endowed with powers by its governing body which are not available to non LEA subjects of a governing body. Typically, a LEA is empowered to varying degrees to:

collect information about subjects in the LEA's jurisdiction
intrusively search for information and evidence related to the non compliance with a law
seize evidence of non compliance with a law
seize property and assets from subjects
direct subjects to provide information related to the non compliance with a law
arrest and detain subjects, depriving them of their liberty, but not incarcerate subjects, for alleged non compliance with a law
lawfully deceive subjects

These powers are not available to subjects other than LEAs within the LEA's jurisdiction and are typically subject to judicial and civil overview.

Usually, these powers are only allowed when it can be shown that a subject is probably already not complying with a law. For example, to undertake an intrusive search, typically a LEA must make an argument and convince a judicial officer of the need to undertake the intrusive search on the basis that it will help detect or prove non-compliance with a law by a specified subject. The judicial officer, if they agree, will then issue a legal instrument, typically called a Search warrant, to the LEA, which must be presented to the relevant subject if possible.

Lawful deception and law exemption
Subjects who do not comply with laws will usually seek to avoid detection by a LEA. When required, in order for the LEA to detect and investigate subjects not complying with laws, the LEA must be able to undertake its activities secretly from the non complying subject. This, however, may require the LEA to explicitly not comply with a law other subjects must comply with. To allow the LEA to operate and comply with the law, it is given lawful exemption to undertake secret activities. Secret activities by a LEA are often referred to as covert operations.

To deceive a subject and carryout its activities, a LEA may be lawfully allowed to secretly:

Create and operate false identities and personalities and organisations, often referred to as under cover operations or assumed identities, for example Australia’s Australian Federal Police by virtue of Part 1AC of the Crimes Act 1914

Allow and assist the illicit movement of licit and illicit substances and wares, sometimes partially substituted with benign materials, often referred to as controlled operations, for example Australia’s LEAs by virtue of Part 1AB of the Crimes Act 1914

Listen to and copy communications between subjects, often referred to as telecommunications interception or wire tapping when the communication medium is electronic in nature, for example the United States's Federal Bureau of Investigation by virtue of United States Code 18 Title 18 Part I Chapter 119 Section 2516, or Australia’s LEAs by virtue of Telecommunications (Interception and Access) Act 1979

Intrusively observe, listen to, and track subjects, often referred to as technical operations, for example Australia’s LEAs by virtue of the Surveillance Devices Act 2004

to typically collect information about and evidence of non compliance with a law and identify other non complying subjects.

Lawful deception and utilisation of law exemption by a LEA is typically subject to very strong judicial or open civil overview. For example, the Australian Federal Police's controlled operations are subject to open civil review by its governing body, the Parliament of Australia.

Other exemptions from laws
Law enforcement agencies have other exemptions from laws to allow them to operate in a practical way. For example, many jurisdictions have laws which forbid animals from entering certain areas for health and safety reasons. LEAs are typically exempted from these laws to allow dogs to be used for search and rescue, drug search, explosives search, chase and arrest, etc. This type of exemption is not unique to LEAs. Sight assist dogs are also typically exempted from access restrictions. Members of LEAs may be permitted to openly display firearms in places where this is typically prohibited to civilians, violate various traffic laws when responding to crimes, or detain persons against their will to investigate suspected crimes.

Interpol is an international organisation and is essentially stateless, but must operate from some physical location. Interpol is protected from certain laws of the country where it is physically located.

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