South Australia

Listening and Surveillance Devices (Private Activities) Amendment Bill 2003

A Bill For

An Act to amend the Listening and Surveillance Devices Act 1972.

Contents

Part 1—Preliminary

1 Short title

2 Commencement

3 Amendment provisions

Part 2—Amendment of Listening and Surveillance Devices Act 1972

4 Amendment of section 3—Interpretation

5 Amendment of section 4—Regulation of use of listening and surveillance devices

6 Amendment of section 5—Prohibition on communication or publication

7 Amendment of section 6—Warrants—General provisions

8 Amendment of section 6AB—Use of information or material derived from use of listening or surveillance devices under warrants

9 Amendment of section 6B—Reports and records relating to warrants etc

10 Amendment of section 6C—Control by police etc of certain records, information and material

11 Amendment of section 7—Lawful use of listening device or visual surveillance device

12 Amendment of section 9—Power to seize declared listening devices etc

13 Amendment of section 11—Forfeiture of listening devices etc

The Parliament of South Australia enacts as follows:

Part 1—Preliminary

1—Short title

This Act may be cited as the Listening and Surveillance Devices (Private Activities) Amendment Act 2003.

2—Commencement

This Act will come into operation on a day to be fixed by proclamation.

3—Amendment provisions

In this Act, a provision under a heading referring to the amendment of a specified Act amends the Act so specified.

Part 2—Amendment of Listening and Surveillance Devices Act 1972

4—Amendment of section 3—Interpretation

Section 3—after the definition of premises insert:

private activity means any activity carried on by a person in circumstances that may reasonably be taken to indicate that any party to the activity desires it to be observed only by the parties to the activity, but does not include an activity carried on in a public place or in any circumstances in which any party to the activity ought reasonably to expect that the activity may be observed;

5—Amendment of section 4—Regulation of use of listening and surveillance devices

Section 4—after its present contents (now to be designated as subsection (1)) insert:

(2) Except as provided by this Act, a person must not intentionally use any visual surveillance device to observe, record visually or monitor any private activity, whether or not the person is a party to the activity, without the consent, express or implied, of the parties to that activity.

Maximum penalty: $10 000 or imprisonment for 2 years.

6—Amendment of section 5—Prohibition on communication or publication

(1) Section 5(1)—after "listening device" insert:

or visual surveillance device

(2) Section 5(2)—after "listening device" insert:

or visual surveillance device

(3) Section 5(2)(a)—after "conversation" insert:

or activity

(4) Section 5(2)(b)—after "conversation" insert:

or activity

7—Amendment of section 6—Warrants—General provisions

(1) Section 6(1)—after paragraph (a) insert:

(ab) the use of one or more visual surveillance devices;

(2) Section 6(7b)—after paragraph (a) insert:

(ab) a warrant authorising the use of a visual surveillance device to observe or record visually activity carried out by or in the presence of a specified person who, according to the terms of the warrant, is suspected on reasonable grounds of having committed, or being likely to commit, a serious offence will be taken to authorise entry to or interference with any premises, vehicle or thing as reasonably required to install, use, maintain or retrieve the device for that purpose;

(3) Section 6(7b)(b)—after "paragraph (a)" insert:

or (b)

8—Amendment of section 6AB—Use of information or material derived from use of listening or surveillance devices under warrants

Section 6AB—after "listening device" insert:

or visual surveillance device

9—Amendment of section 6B—Reports and records relating to warrants etc

(1) Section 6B(1a)—after "listening devices" insert:

, warrants authorising the use of visual surveillance devices

(2) Section 6B(1b)(a)—after subparagraph (i) insert:

(ia) used a visual surveillance device otherwise than under a warrant; or

(3) Section 6B(1b)(a)(ii)—delete "surveillance" and substitute:

tracking

10—Amendment of section 6C—Control by police etc of certain records, information and material

(1) Section 6C(b)—after "listening device" insert:

or visual surveillance device

(2) Section 6C(b)—delete "surveillance device" and substitute:

tracking

11—Amendment of section 7—Lawful use of listening device or visual surveillance device

(1) Section 7(1)—delete subsection (1) and substitute:

(1) Section 4 does not apply to or in relation to the use of a listening device or visual surveillance device by a person (including a person to whom a warrant is issued under this Act) if—

(a) in the case of a listening device, the device is used—

(i) to overhear, record, monitor or listen to a private conversation to which that person is a party; and

(ii) in the course of duty of that person, in the public interest or for the protection of the lawful interests of that person;

(b) in the case of a visual surveillance device—the device is used—

(i) to observe, record visually or monitor a private activity to which that person is a party; and

(ii) in the course of duty of that person, in the public interest or for the protection of the lawful interests of that person.

(2) Section 7(2)—after "listening device" insert:

or visual surveillance device

(3) Section 7(2)—delete "overhears, records, monitors or listens to the private conversation by means of that device for the purposes of that investigation" and substitute:

(d) in the case of a listening device—overhears, records, monitors or listens to the private conversation by means of that device for the purposes of that investigation; or

(e) in the case of a visual surveillance device—observes, records visually or monitors the private activity by means of that device for the purposes of that investigation.

(4) Section 7—after subsection (3) insert:

(4) A person must not knowingly communicate or publish information or material derived from the use (whether by that person or another person) of a visual surveillance device under this section except—

(a) to a person who was a party to the activity to which the information or material relates; or

(b) with the consent of each party to the activity to which the information or material relates; or

(c) in the course of duty or in the public interest, including, in the case of information or material derived from the use of a visual surveillance device in the course of an investigation by the police of the National Crime Authority, for the purposes of a relevant investigation or a relevant proceeding; or

(d) being a party to the activity to which the information or material relates, as reasonably required for the protection of the person's lawful interests; or

(e) where the information or material has been taken or received in public as evidence in a relevant proceeding.

Maximum penalty: $10 000 or imprisonment for 2 years.

12—Amendment of section 9—Power to seize declared listening devices etc

Section 9(1)(e)—delete "or information derived from the use of a listening device" and substitute:

or visual surveillance device, or information derived from the use of a listening device or visual surveillance device

13—Amendment of section 11—Forfeiture of listening devices etc

(1) Section 11(1)—delete "or record of any information or material in connection with which the offence was committed" and substitute:

or visual surveillance device, or record of any information or material in connection with which the offence was committed,

(2) Section 11(2)—delete "or record of information or material" and substitute:

or visual surveillance device, or record of information or material,