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SURVEILLANCE DEVICES ACT 2007 - SECT 4
Definitions
(1) In this Act--
"applicant" for a warrant means the law enforcement officer who applies, or on
whose behalf an application is made, for the warrant.
"Australian Crime Commission" means the Australian Crime Commission
established by the Australian Crime Commission Act 2002 of the Commonwealth.
"body-worn video" means equipment worn on the person of a police officer that
is capable of recording visual images or sound or both.
"building" includes any structure.
"business day" means a day other than a Saturday, Sunday, public holiday or
bank holiday in New South Wales.
"chief officer" means the following-- (a) in relation to the NSW Police
Force--the Commissioner of Police,
(b) in relation to the
Australian Crime Commission--the Chief Executive Officer of the
Australian Crime Commission,
(c) in relation to the New South Wales Crime
Commission--the Commissioner for the New South Wales Crime Commission,
(d) in
relation to the Independent Commission Against Corruption--the Chief
Commissioner of the Independent Commission Against Corruption,
(e) in
relation to the Law Enforcement Conduct Commission--the Chief Commissioner of
that Commission, or
(f) any other person prescribed by the regulations as the
chief officer in relation to a law enforcement agency.
"computer" means any electronic device for storing, processing or transferring
information.
"correctional centre" and
"inmate" of a correctional centre have the same meanings as in the Crimes
(Administration of Sentences) Act 1999 .
"corresponding emergency authorisation" means an authorisation in the nature
of an emergency authorisation given under the provisions of a
corresponding law, being an authorisation in relation to a relevant offence
within the meaning of the corresponding law.
"corresponding law" means a law of another jurisdiction that-- (a) provides
for the authorisation of the use of surveillance devices, and
(b) is declared
by the regulations to be a corresponding law.
"corresponding warrant" means a warrant in the nature of a
surveillance device warrant or retrieval warrant issued under the provisions
of a corresponding law, being a warrant in relation to a relevant offence
within the meaning of that corresponding law.
"data surveillance device" means any device or program capable of being used
to record or monitor the input of information into or output of information
from a computer, but does not include an optical surveillance device.
"device" includes instrument, apparatus and equipment.
"disciplinary proceeding" means a proceeding of a disciplinary nature under a
law of any jurisdiction or of the Commonwealth.
"eligible Judge" is defined in section 5.
"eligible Magistrate" is defined in section 5.
"emergency authorisation" means an emergency authorisation given under
Division 4 of Part 3.
"enhancement equipment" , in relation to a surveillance device, means
equipment capable of enhancing a signal, image or other information obtained
by use of the surveillance device.
"exercise" a function includes perform a duty.
"function" includes a power, authority or duty.
"Inspector" means the Inspector of the Law Enforcement Conduct Commission.
"install" includes attach.
"jurisdiction" means a State or Territory of the Commonwealth.
"law enforcement agency" means the following agencies-- (a) the NSW Police
Force,
(b) the New South Wales Crime Commission,
(c) the Independent
Commission Against Corruption,
(d) the Law Enforcement Conduct Commission,
(e) any other agency prescribed by the regulations for the purposes of this
definition.
"law enforcement officer" means the following-- (a) in relation to the NSW
Police Force--a member of the NSW Police Force,
(b) in relation to the New
South Wales Crime Commission--an officer of the Commission within the meaning
of the Crime Commission Act 2012 ,
(c) in relation to the Independent
Commission Against Corruption--an officer of the Commission within the meaning
of the Independent Commission Against Corruption Act 1988 ,
(d) in relation
to the Law Enforcement Conduct Commission--an officer of the Commission within
the meaning of the Law Enforcement Conduct Commission Act 2016 ,
(e) in
relation to an agency prescribed for the purposes of paragraph (e) of the
definition of
"law enforcement agency" --any person prescribed by the regulations as a
law enforcement officer in respect of that agency for the purposes of this
definition,
and includes a person who is seconded to a law enforcement agency,
including (but not limited to) a member of the police force or police service
or a police officer (however described) of another jurisdiction.
"listening device" means any device capable of being used to overhear, record,
monitor or listen to a conversation or words spoken to or by any person in
conversation, but does not include a hearing aid or similar device used by a
person with impaired hearing to overcome the impairment and permit that person
to hear only sounds ordinarily audible to the human ear.
"maintain" , in relation to a surveillance device, includes-- (a) adjust,
relocate, repair or service the device, and
(b) replace a faulty device.
"optical surveillance device" means any device capable of being used to record
visually or observe an activity, but does not include spectacles, contact
lenses or a similar device used by a person with impaired sight to overcome
that impairment.
"participating jurisdiction" means a jurisdiction in which a corresponding law
is in force.
"party" -- (a) to an activity--means a person who takes part in the activity,
and
(b) to a private conversation--means a person by or to whom words are
spoken in the due course of the conversation or a person who, with the
consent, express or implied, of any of the persons by or to whom words are
spoken in the course of the conversation, records, monitors or listens to
those words.
"premises" includes the following-- (a) land,
(b) a building,
(c) a part of
a building,
(d) any place, whether built on or not,
whether in or outside
this jurisdiction.
"principal party" , in relation to a private conversation, means a person by
or to whom words are spoken in the course of the conversation.
"private conversation" means any words spoken by one person to another person
or to other persons in circumstances that may reasonably be taken to indicate
that any of those persons desires the words to be listened to only-- (a) by
themselves, or
(b) by themselves and by some other person who has the
consent, express or implied, of all of those persons to do so,
but does not
include a conversation made in any circumstances in which the parties to it
ought reasonably to expect that it might be overheard by someone else.
"protected information" has the meaning given to it by section 39.
"public officer" means a person employed by, or holding an office established
by or under a law of, this jurisdiction or a person employed by a public
authority of this jurisdiction, and includes a law enforcement officer.
"record" includes the following-- (a) an audio, visual or audio visual record,
(b) a record in digital form,
(c) a documentary record prepared from a record
referred to in paragraph (a) or (b).
"relevant offence" means-- (a) an offence against a law of this jurisdiction
or of the Commonwealth or another State or Territory that may be prosecuted on
indictment, or
(b) an offence against the law of this jurisdiction that is
prescribed by the regulations for the purposes of this definition.
"relevant proceeding" means the following-- (a) the prosecution of a
relevant offence,
(b) a proceeding for the confiscation, forfeiture or
restraint of property or for the imposition of a pecuniary penalty in
connection with a relevant offence,
(c) a proceeding for the protection of a
child or intellectually impaired person,
(d) a proceeding concerning the
validity of a warrant, emergency authorisation, corresponding warrant or
corresponding emergency authorisation,
(e) a disciplinary proceeding against
a public officer,
(f) a coronial inquest or inquiry if, in the opinion of the
coroner, the event that is the subject of the inquest or inquiry may have
resulted from the commission of a relevant offence,
(g) a proceeding under
section 13 of the Mutual Assistance in Criminal Matters Act 1987 of the
Commonwealth in relation to a criminal matter that concerns an offence against
the laws of the foreign country that made the request resulting in the
proceeding, being an offence that may be prosecuted on indictment,
(h) a
proceeding for the taking of evidence under section 43 of the
Extradition Act 1988 of the Commonwealth, in so far as the proceeding relates
to a relevant offence,
(i) a proceeding for the extradition of a person from
another jurisdiction to this jurisdiction, in so far as the proceeding relates
to a relevant offence,
(j) a proceeding under Division 1 of Part 4 of the
International War Crimes Tribunals Act 1995 of the Commonwealth,
(k) a
proceeding of the International Criminal Court,
(l) a compulsory examination
or public inquiry before the Independent Commission Against Corruption or an
inquiry before the Inspector of the Independent Commission Against Corruption,
(m) a public or private examination before an examining Commissioner (within
the meaning of the Law Enforcement Conduct Commission Act 2016 ) or an
inquiry before the Inspector of the Law Enforcement Conduct Commission,
(n) a
hearing before the New South Wales Crime Commission,
(o) an examination
before the Australian Crime Commission,
(p) any proceeding in respect of a
declaration under Part 2, or a control order under Division 1 or 2 of Part 3,
of the Crimes (Criminal Organisations Control) Act 2012 ,
(q) a proceeding
for the parole of a person to whom Division 5 of Part 4C of the
Children (Detention Centres) Act 1987 applies,
(r) a proceeding under the
Terrorism (High Risk Offenders) Act 2017 ,
(s) a proceeding before the State
Parole Authority under Part 6 or 7 of the Crimes (Administration of
Sentences) Act 1999 ,
(t) an application under the
Crimes (Serious Crime Prevention Orders) Act 2016 to an appropriate court
within the meaning of that Act, or an appeal under section 11 of that Act,
(u) an application under Part 5 of the Crimes (Forensic Procedures) Act 2000
,
(v) a proceeding before the Civil and Administrative Tribunal in respect of
an application for administrative review under section 75(1)(a) or (f) of the
Firearms Act 1996 .
"remote application" for a warrant means an application referred to in
section 18 or 26.
"report" of a conversation or activity includes a report of the substance,
meaning or purport of the conversation or activity.
"retrieval warrant" means a warrant issued under Division 3 of Part 3.
"senior officer" means the following-- (a) in relation to the NSW Police
Force-- (i) the Commissioner of Police, or
(ii) any Deputy Commissioner of
Police, or
(iii) any Assistant Commissioner of Police, or
(iv) any
Superintendent of Police,
(b) in relation to the New South Wales Crime
Commission--the Commissioner for the New South Wales Crime Commission,
(c) in
relation to the Independent Commission Against Corruption--the Chief
Commissioner or any other Commissioner of the Independent Commission Against
Corruption,
(d) in relation to the Law Enforcement Conduct Commission--the
Chief Commissioner of the Law Enforcement Conduct Commission,
(e) in relation
to any other agency prescribed by the regulations for the purposes of the
definition of
"law enforcement agency" --any officer prescribed by the regulations for the
purposes of this definition for that agency.
"serious narcotics offence" means an offence under Division 2 of Part 2 of the
Drug Misuse and Trafficking Act 1985 but does not include an offence that is
declared by the regulations not to be a serious narcotics offence for the
purposes of this Act.
"supervision or detention order" under the Terrorism (High Risk Offenders)
Act 2017 means any of the following orders under that Act-- (a) an extended
supervision order,
(b) an interim supervision order,
(c) a continuing
detention order,
(d) an interim detention order,
(e) an emergency detention
order.
"surveillance device" means-- (a) a data surveillance device, a
listening device, an optical surveillance device or a tracking device, or
(b)
a device that is a combination of any 2 or more of the devices referred to in
paragraph (a), or
(c) a device of a kind prescribed by the regulations.
"surveillance device warrant" means a warrant issued under Division 2 of Part
3 or under section 35(3).
"surveillance device warrant particulars" --see section 20(1).
"Surveillance Devices Commissioner" means the
Surveillance Devices Commissioner appointed under section 51A.
"terrorism related offender" means a person who is any of the following within
the meaning of the Terrorism (High Risk Offenders) Act 2017 -- (a) a
convicted NSW terrorist offender,
(b) a convicted NSW underlying terrorism
offender,
(c) a convicted NSW terrorism activity offender.
"this jurisdiction" means New South Wales.
"tracking device" means any electronic device capable of being used to
determine or monitor the geographical location of a person or an object.
"unsworn application" for a warrant means an application referred to in
section 17(4) or 25(4).
"use" of a surveillance device includes use of the device to record a
conversation or other activity.
"vehicle" includes the following-- (a) an aircraft,
(b) a vessel,
(c) a part
of a vehicle,
whether in or outside this jurisdiction.
"warrant" means surveillance device warrant or retrieval warrant. Note--: The
Interpretation Act 1987 contains definitions and other provisions that affect
the interpretation and application of this Act.
(2) For the purposes of this
Act, an investigation into an offence against the law of this jurisdiction is
taken to be conducted in this jurisdiction (whether or not it is also
conducted in another jurisdiction) if a law enforcement officer of
this jurisdiction participates in the investigation. Note--: Subsection (2) is
intended to cover the situation where an officer of this jurisdiction is
conducting or participating in an investigation wholly in another jurisdiction
for the purposes of an offence against a law of this jurisdiction (eg a NSW
officer is investigating a conspiracy to import drugs into NSW from Victoria,
and all the evidence of the offence is in Victoria).
(3) A thing is not
precluded from being a listening device within the meaning of this Act merely
because it is also capable of-- (a) recording or transmitting visual images
(for example a video camera), or
(b) recording or transmitting its own
position.
(4) A reference in this Act to-- (a) a report of a
private conversation includes a reference to a report of the substance,
meaning or purport of the conversation, and
(b) a record of a
private conversation includes a reference to a statement prepared from such a
record.
(5) A reference in this Act to the retrieval of a surveillance device
includes, in relation to a data surveillance device, a reference to the
removal or erasure of the device.
(6) Notes included in this Act do not form
part of this Act.
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