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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Surveillance Devices Bill 2012
A BILL FOR
An Act to make provision relating to the use of surveillance devices; to
provide for cross-border recognition of warrants relating to surveillance
devices; to repeal the Listening
and Surveillance Devices Act 1972; to make related amendments to
the Criminal
Investigation (Covert Operations) Act 2009 and the Director
of Public Prosecutions Act 1991; and for other purposes.
Contents
Part 1—Preliminary
1Short
title
2Commencement
3Interpretation
Part 2—Regulation
of installation, use and maintenance of surveillance
devices
Division 1—Installation,
use and maintenance of surveillance devices
4Listening
devices
5Optical surveillance
devices
6Tracking devices
7Data
surveillance devices
Division 2—Prohibition on
communication or publication
8Prohibition on communication
or publication
Part 3—Surveillance
device warrants and surveillance device (emergency)
authorities
Division 1—Surveillance
device (tracking) warrants
9Application of
Division
10Application
procedure
11Surveillance device
(tracking) warrant
Division 2—Surveillance
device (general) warrants
12Application of Division
13Usual application
procedure
14Remote application
procedure
15Surveillance device
(general) warrant
Division 3—Surveillance
device (emergency) authorities
16Application procedure
17Surveillance device
(emergency) authority
18Application for
confirmation of surveillance device (emergency) authority etc
19Confirmation of
surveillance device (emergency) authority etc
Division 4—Recognition of
corresponding warrants and authorities
20Corresponding warrants
21Corresponding
emergency authorities
Division 5—Miscellaneous
22Management of
records relating to surveillance device warrants etc
23Limitations on
use of information or material derived under this Part
Part 4—Register, reports and
records
24Interpretation
25Register
26Reports and
records
27Control by investigating
agencies of certain records, information and material
28Inspection of
records
29Powers of review agency
Part 5—Miscellaneous
30Offence to wrongfully
disclose information
31Delegation
32Possession
etc of declared surveillance device
33Power to seize surveillance devices
etc
34Imputing conduct to bodies
corporate
35Evidence
36Forfeiture of surveillance
devices
37Regulations
Schedule 1—Related amendments, repeal
and transitional provisions
Part 1—Preliminary
1Amendment
provisions
Part 2—Amendment of
Criminal Investigation (Covert Operations) Act 2009
2Amendment of
section 3—Interpretation
Part 3—Amendment of
Director of Public Prosecutions Act 1991
3Amendment of
section 12—Annual reports
Part 4—Repeal and
transitional provisions
4Repeal and transitional
provisions
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Surveillance Devices
Act 2012.
This Act will come into operation on a day to be fixed by
proclamation.
(1) In this Act, unless the contrary intention appears—
ACC means the Australian Crime Commission;
associated equipment, in relation to a surveillance device,
means equipment or things used for, or in connection with, the operation of the
device;
business day means any day other than a Saturday, Sunday or
public holiday;
chief officer of an investigating agency
means—
(a) in the case of SA Police—the Commissioner of Police;
or
(b) in the case of the Independent Commissioner Against
Corruption—the Independent Commissioner Against Corruption; or
(c) in the case of the ACC—the Chief Executive Officer of the ACC;
or
(d) in the case of any other investigating agency—the person
responsible under the legislation establishing the agency for the control and
management of the agency;
code name—see
subsection (2) and
sections 15(3)
and
17(3);
corresponding emergency authority means an authority in the
nature of a surveillance device (emergency) authority under this Act issued
under a corresponding law of a participating jurisdiction in relation to an
offence against the law of that jurisdiction corresponding to a serious
offence;
corresponding law means a law of another jurisdiction
declared by the regulations to correspond to this Act;
corresponding warrant means a warrant in the nature of a
surveillance device warrant under this Act issued under a corresponding law of a
participating jurisdiction in relation to an offence against the law of that
jurisdiction corresponding to a serious offence;
data surveillance device means—
(a) a program or device capable of being used to access, track, monitor or
record the input of information into, or the output of information from, a
computer; and
(b) associated equipment (if any);
declared surveillance device means a surveillance device or a
surveillance device of a class or kind to which for the time being
section 32
applies;
duplicate surveillance device (general) warrant—see
section 14(2)(e);
investigating agency means—
(a) SA Police; or
(b) the Independent Commissioner Against Corruption; or
(c) the ACC; or
(d) an enforcement agency within the meaning of the Telecommunications
(Interception and Access) Act 1979 of the Commonwealth (an
enforcement agency); or
(e) a police force
of a participating jurisdiction;
judge means a judge of the Supreme Court of South
Australia;
jurisdiction means the Commonwealth or a State or Territory
of the Commonwealth;
listening device means—
(a) a device capable of being used to listen to or record a private
conversation or words spoken to or by any person in private conversation
(whether or not the device is also capable of operating as some other kind of
surveillance device); and
(b) associated equipment (if any),
but does not include—
(c) a device being used to assist a person with impaired hearing to hear
sounds ordinarily audible to the human ear; or
(d) a device of a kind excluded from the ambit of this definition by the
regulations;
maintain, in relation to a surveillance device,
includes—
(a) adjust, relocate, repair or service the device; and
(b) replace a faulty device;
member of the staff of the ACC has the same meaning as in the
Australian Crime Commission Act 2002 of the Commonwealth;
officer of an investigating agency or officer
means—
(a) in the case of SA Police—a police officer or a police
officer (however described) of another jurisdiction seconded to SA Police;
or
(b) in the case of the Independent Commissioner Against
Corruption—an investigator under the Independent
Commissioner Against Corruption Act 2012; or
(c) in the case of the ACC—a member of the Board of the ACC or a
member of the staff of the ACC who is a member of the Australian Federal Police
or the police force of a State or Territory of the Commonwealth; or
(d) in the case of a police force of a participating jurisdiction—a
police officer (however described) who is a member of that police force or a
police officer (however described) of another jurisdiction seconded to that
police force; or
(e) in the case of an enforcement agency—a person authorised under
the Telecommunications (Interception and Access) Act 1979 of the
Commonwealth to apply for a warrant under that Act;
optical surveillance device means—
(a) a device capable of being used to observe or record visually (whether
for still or moving pictures) a person, place or activity; and
(b) associated equipment (if any),
but does not include—
(c) spectacles, contact lenses or a similar device used by a person with
impaired vision to lessen or overcome that impairment; or
(d) telescopes, binoculars or similar devices; or
(e) a device of a kind excluded from the ambit of this definition by the
regulations;
participating jurisdiction means a jurisdiction in which a
corresponding law is in force;
premises includes—
(a) land; and
(b) a building; and
(c) a part of a building; and
(d) any place, whether built on or not,
whether in or outside this State;
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 a conversation carried on in
circumstances that may reasonably be taken to indicate that at least
1 party to the conversation desires it to be heard only by the other
parties to the conversation, but does not include a conversation made in
circumstances in which all parties to the conversation ought reasonably to
expect that it may be heard by a person who is not a party to the
conversation;
public place includes—
(a) a place to which free access is permitted to the public, with the
express or tacit consent of the owner or occupier of that place; and
(b) a place to which the public are admitted on payment of money, the test
of admittance being the payment of money only; and
(c) a road, street, footway, court, alley or thoroughfare which the public
are allowed to use, even though that road, street, footway, court, alley or
thoroughfare is on private property;
relevant investigation means any of the following
investigations:
(a) an investigation of an offence (whether under the law of this State or
another jurisdiction);
(b) an investigation for the purposes of the Serious
and Organised Crime (Control) Act 2008;
(c) an investigation for the purposes of the Serious
and Organised Crime (Unexplained Wealth) Act 2009;
(d) an investigation for the purposes of a proceeding for the confiscation
or forfeiture of property or for the imposition of a pecuniary
penalty;
(e) an investigation of alleged misbehaviour or improper conduct of a
member of a police force or an officer or employee of the State or another
jurisdiction;
relevant action or proceeding means any of the following
actions or proceedings (whether under the law of this State or another
jurisdiction):
(a) a prosecution of an offence;
(b) an application for bail;
(c) an application for a warrant or authority under this Act or any other
Act or law;
(d) the making, variation or revocation of a public safety order under the
Serious
and Organised Crime (Control) Act 2008;
(e) an application for a declaration or order under the Serious
and Organised Crime (Control) Act 2008 (or an Act of another
jurisdiction prescribed for the purposes of this paragraph);
(f) the giving of an authorisation by the DPP under the Serious
and Organised Crime (Unexplained Wealth) Act 2009;
(g) an application under the Serious
and Organised Crime (Unexplained Wealth) Act 2009;
(h) the confiscation or forfeiture of property or the imposition of a
pecuniary penalty;
(i) the taking of evidence on commission for use in criminal proceedings
originating in Australia;
(j) the extradition or transfer of a person to or from Australia or a
State or Territory of the Commonwealth;
(k) a police disciplinary proceeding;
(l) a proceeding relating to alleged misbehaviour, or alleged improper
conduct, of a police officer (however described), or an officer or employee, of
the State or another jurisdiction;
responsible officer—
(a) in relation to a surveillance device warrant—means the officer
primarily responsible for executing the warrant; and
(b) in relation to a surveillance device (emergency) authority—means
the officer primarily responsible for exercising the powers under the
authority;
review agency for an investigating agency
means—
(a) for SA Police—the Police Ombudsman; or
(b) for the Independent Commissioner Against Corruption—a person who
is independent of the Commissioner and is appointed by the Governor as the
review agency;
SA Police means South Australia Police;
serious drug offence means—
(a) an offence against Part 5 Division 2 or 3 of the Controlled
Substances Act 1984 or a substantially similar offence against a
corresponding previous enactment; or
(b) an offence against a law of the Commonwealth dealing with the unlawful
importation of drugs into Australia; or
(c) a conspiracy to commit, or an attempt to commit, such an
offence;
serious offence means—
(a) a serious drug offence; or
(b) any of the
following offences:
(i) an offence for which a maximum penalty prescribed is, or includes,
imprisonment for at least 3 years;
(ii) a conspiracy to commit, or an attempt to commit, such an offence;
or
(iii) an offence—
(A) of aiding or abetting, counselling or procuring any such offence;
or
(B) of being an accessory after the fact to any such offence; or
(c) an offence against the law of another jurisdiction corresponding to an
offence referred to in a preceding paragraph;
surveillance device means—
(a) a listening device; or
(b) an optical surveillance device; or
(c) a tracking device; or
(d) a data surveillance device; or
(e) a device that is a combination of any of the devices referred to in a
preceding paragraph; or
(f) a device of a kind prescribed by the regulations;
surveillance device (emergency) authority means a
surveillance device (emergency) authority granted under
Part 3
Division 3;
surveillance device warrant means—
(a) a surveillance device (tracking) warrant; or
(b) a surveillance device (general) warrant;
surveillance device (general) warrant means a warrant issued
under
Part 3
Division 2;
surveillance device (tracking) warrant means a warrant issued
under
Part 3
Division 1;
telephone includes any telecommunication device;
tracking device means—
(a) a device capable of being used to determine the geographical location
of a person, vehicle or thing; and
(b) associated equipment (if any),
but does not include a device of a kind declared by the Minister, by notice
in the Gazette, to be excluded from the ambit of this definition;
vehicle includes any vessel or aircraft.
(2) For the purposes of
this Act, a code name for an officer in respect of a surveillance
device warrant or surveillance device (emergency) authority means a unique
identifier specified in the warrant or authority (as the case may be) instead of
the officer's name.
Part 2—Regulation
of installation, use and maintenance of surveillance
devices
Division 1—Installation,
use and maintenance of surveillance devices
(1) Subject to this
section, a person must not knowingly install, use or cause to be used, or
maintain, a listening device—
(a) to overhear, record, monitor or listen to a private conversation to
which the person is not a party; or
(b) to record a private
conversation to which the person is a party.
Maximum penalty:
(a) in the case of a body corporate—$75 000;
(b) in the case of a natural person—$15 000 or imprisonment for
3 years.
(2)
Subsection (1)(b) does
not apply to the use of a listening device by a party to a private
conversation—
(a) if all principal parties to the conversation consent, expressly or
impliedly, to the device being so used; or
(b) if—
(i) the party to the conversation using the device is the victim of an
offence alleged to have been committed by another party to the conversation;
and
(ii) the use of the device is for the protection of the lawful interests
of that person or in the public interest.
(3)
Subsection (1)
does not apply—
(a) to the
installation, use or maintenance of a listening device if—
(i) the installation, use or maintenance is authorised under this Act or
any other Act or a corresponding law; or
(ii) the installation, use or maintenance is authorised under the
Telecommunications (Interception and Access) Act 1979, or another law, of
the Commonwealth, or
(iii) the device is
installed, used or maintained for the purposes of an approved undercover
operation under Part 2 of the Criminal
Investigation (Covert Operations) Act 2009 by, or on behalf of, a
person who is an authorised participant in the approved undercover operation;
or
(b) to the installation, use or maintenance of a listening device on or
within premises or a vehicle if—
(i) an owner or occupier of the premises or vehicle agrees to the
installation, use or maintenance of the device; and
(ii) the installation, use or maintenance of the device is reasonably
necessary for the protection of the lawful interests of the owner or occupier of
the premises or vehicle, or some other person; or
(c) to the use of a listening device to record any words spoken in
connection with the execution of a surveillance device warrant or surveillance
device (emergency) authority under this Act, or a warrant or other authority
under any other Act or law; or
(d) to the use of a listening device by an officer for the purpose of
recording any words spoken by or to, or within the hearing of, the officer
during activities carried out in the course of the officer's duties;
or
(e) to the unintentional hearing of a private conversation by means of a
listening device; or
(f) to the use of a listening device solely for the purposes of the
location and retrieval of the device; or
(g) to the installation, use or maintenance of a listening device in
prescribed circumstances.
(4) An exemption from
subsection (1)
that applies under
subsection (3)
to a person in relation to the installation, use or maintenance of a listening
device for the purposes of the investigation of a matter by an investigating
agency extends to any other person who, for the purposes of the
investigation—
(a) installs, uses or maintains that device; or
(b) overhears, records, monitors or listens to the private conversation by
means of that device.
5—Optical
surveillance devices
(1) Subject to this
section, a person must not knowingly install, use or maintain an optical
surveillance device on or within premises or a vehicle, or on any other thing,
to record visually or observe the carrying on of an activity if the
installation, use or maintenance of the device involves either or both of the
following:
(a) entry onto or into the premises or vehicle without the express or
implied consent of the owner or occupier of the premises or vehicle;
(b) interference with the premises, vehicle or thing without the express
or implied consent of the person having lawful possession or lawful control of
the premises, vehicle or thing.
Maximum penalty:
(a) in the case of a body corporate—$75 000;
(b) in the case of a natural person—$15 000 or imprisonment for
3 years.
(2)
Subsection (1) does not
apply—
(a) to the installation, use or maintenance of an optical surveillance
device if—
(i) the installation, use or maintenance of the device is authorised under
this Act or any other Act or a corresponding law; or
(ii) the installation, use or maintenance of the device is authorised
under a law of the Commonwealth; or
(iii) the device is installed, used or maintained for the purposes of an
approved undercover operation under Part 2 of the Criminal
Investigation (Covert Operations) Act 2009 by, or on behalf of, a
person who is an authorised participant in the approved undercover operation;
or
(b) to the installation, use or maintenance of an optical surveillance
device on premises if—
(i) an occupier of the premises authorises the installation, use or
maintenance of the device; and
(ii) the installation, use or maintenance of the device is reasonably
necessary for the protection of the lawful interests of a person; or
(c) to the use of an optical surveillance device to record any activity in
connection with the execution of a surveillance device warrant or surveillance
device (emergency) authority under this Act, or a warrant or other authority
under any other Act or law; or
(d) to the installation, use or maintenance of an optical surveillance
device by an officer to record any activity carried out in a public place in the
course of the officer's duties; or
(e) to the use of an optical surveillance device solely for the purpose of
the location and retrieval of the device; or
(f) to the installation, use or maintenance of an optical surveillance
device in prescribed circumstances.
(3) An exemption from
subsection (1) that
applies under
subsection (2) to a
person in relation to the installation, use or maintenance of an optical
surveillance device for the purposes of the investigation of a matter by an
investigating agency extends to any other person who, for the purposes of the
investigation—
(a) installs, uses or maintains that device; or
(b) records or monitors an activity by means of that device.
(1) Subject to this
section, a person must not knowingly install, use or maintain a tracking device
to determine the geographical location of—
(a) a person without the express or implied consent of that person;
or
(b) a vehicle or thing without the express or implied consent of the
owner, or a person in lawful possession or control, of that vehicle or
thing.
Maximum penalty:
(a) in the case of a body corporate—$75 000;
(b) in the case of a natural person—$15 000 or imprisonment for
3 years.
(2)
Subsection (1) does
not apply—
(a) to the installation, use or maintenance of a tracking device
if—
(i) the installation, use or maintenance of the device is authorised under
this Act or any other Act or a corresponding law; or
(ii) the installation, use or maintenance of the device is authorised
under a law of the Commonwealth, or
(iii) the device is installed, used or maintained for the purposes of an
approved undercover operation under Part 2 of the Criminal
Investigation (Covert Operations) Act 2009 by, or on behalf of, a
person who is an authorised participant in the approved undercover operation;
or
(b) to the use of a tracking device solely for the purpose of the location
and retrieval of the device.
(1) Subject to this
section, a person must not knowingly install, use or maintain a data
surveillance device to access, track, monitor or record the input of information
into, the output of information from, or information stored in, a computer
without the express or implied consent of the owner, or person with lawful
control or management, of the computer.
Maximum penalty:
(a) in the case of a body corporate—$75 000;
(b) in the case of a natural person—$15 000 or imprisonment for
3 years.
(2)
Subsection (1) does not
apply to the installation, use or maintenance of a data surveillance device if
the installation, use of maintenance of the device is
authorised—
(a) under this Act or any other Act or a corresponding law; or
(b) under a law of the Commonwealth.
Division 2—Prohibition
on communication or publication
8—Prohibition
on communication or publication
(1) A person must
not knowingly use, communicate or publish information or material derived from
the use (whether by that person or another person) of a surveillance device in
contravention of this Part.
Maximum penalty:
(a) in the case of a body corporate—$75 000;
(b) in the case of a natural person—$15 000 or imprisonment for
3 years.
(2) This section does not prevent the use, communication or publication of
information or material derived from the use of a surveillance device in
contravention of this Part—
(a) to a person who was a party to the conversation or activity to which
the information or material relates; or
(b) with the consent of each party to the conversation or activity to
which the information or material relates; or
(c) for the purposes of a relevant investigation or relevant action or
proceeding relating to that contravention of this Part or a contravention of
this section involving the communication or publication of that information or
material; or
(d) in the course of proceedings for an offence against this Act;
or
(e) otherwise in the course of duty or as required by law.
(3) A person who obtains knowledge of information or material in a manner
that does not involve a contravention of this Part is not prevented from
communicating or publishing the knowledge so obtained even if the same knowledge
was also obtained in a manner that contravened this Part.
Part 3—Surveillance
device warrants and surveillance device (emergency)
authorities
Division 1—Surveillance
device (tracking) warrants
This Division applies if, for the purposes of the investigation of a matter
by an investigating agency, the agency requires the authority—
(a) to install on a vehicle or thing situated in a public place, or in the
lawful custody of the agency, 1 or more tracking devices; and
(b) to use those devices.
Note—
See also
Division 2 and
Division 3 in
relation to the procedures to be followed if an investigating agency requires
the authority of a surveillance device (general) warrant in order to install,
use, maintain or retrieve surveillance devices, including tracking
devices.
(1) An officer of
an investigating agency may, for the purposes of an investigation by the agency,
apply to the chief officer of the agency for a surveillance device (tracking)
warrant authorising—
(a) the use (in a public place or elsewhere) of 1 or more tracking
devices; and
(b) such interference as is reasonably required with any vehicle or thing
situated in a public place, or in the lawful custody of the agency, to install,
maintain or retrieve 1 or more tracking devices.
(2) An officer of an investigating agency may, for the purposes of an
investigation by the agency, apply to the chief officer of the agency for the
variation or renewal of a surveillance device (tracking) warrant.
(3) An application for a surveillance device (tracking) warrant, or the
variation or renewal of a surveillance device (tracking) warrant, may be made in
person, in writing, or by fax, email, telephone or any other means of
communication.
(4) If an application is made by means other than by written
application—
(a) the applicant must inform the chief officer of the relevant
investigating agency of—
(i) his or her name; and
(ii) his or her rank or position in the investigating agency;
and
(iii) if he or she is not to be the officer primarily responsible for
executing the warrant—the name of the responsible officer; and
(iv) the nature and duration of the warrant sought, including the kind of
tracking device to which the warrant relates; and
(v) the grounds on which the warrant is sought; and
(b) the chief officer must make a contemporaneous written record of the
details of the application; and
(c) the applicant must, within 24 hours of making the application,
give to the chief officer written confirmation of the application.
(5) If a written
application is made, the application must specify—
(a) the name of the applicant; and
(b) the applicant's rank or position in the investigating agency;
and
(c) if the applicant is not to be the officer primarily responsible for
executing the warrant—the name of the responsible officer; and
(d) the nature and duration of the warrant sought, including the kind of
tracking device to which the warrant relates; and
(e) the grounds on which the warrant, or variation or renewal of the
warrant, is sought.
(6) The chief officer of the investigating agency to whom an application
is made may require further information to be given in relation to the
application.
11—Surveillance
device (tracking) warrant
(1) The chief officer of an investigating agency to whom an application is
made may issue a surveillance device (tracking) warrant if satisfied that there
are, in the circumstances of the case, reasonable grounds for issuing the
warrant, taking into account—
(a) the nature and gravity of the criminal conduct to which the
investigation relates; and
(b) the availability of alternative means of obtaining the information;
and
(c) any other surveillance device warrant under this Act applied for or
issued in relation to the same matter; and
(d) any other matter the chief officer considers relevant.
(2) A surveillance device (tracking) warrant must specify—
(a) the name of the applicant; and
(b) if the applicant is not to be the officer primarily responsible for
executing the warrant—the name of the responsible officer; and
(c) the name of the issuing officer; and
(d) the kind of tracking device authorised to be used under the warrant;
and
(e) if the warrant authorises the use of a tracking device in respect of
the geographical location of a person—
(i) the name of the person (if known); or
(ii) if the name of the person is unknown—that fact and a general
description of the person; and
(f) the period for which the warrant will be in force (being a period not
longer than 90 days); and
(g) may contain—
(i) conditions and limitations; and
(ii) any other matter,
as the issuing officer thinks fit.
(3) Subject to any conditions or limitations specified in the surveillance
device (tracking) warrant—
(a) a warrant
authorising the use (in a public place or elsewhere) of a tracking device in
respect of the geographical location of a specified person or a person whose
specific identity is unknown 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 interference with any vehicle or
thing situated in a public place, or in the lawful custody of the relevant
investigating agency, as reasonably required to install, use, maintain or
retrieve the device for that purpose; and
(b) a warrant authorising (whether under the terms of the warrant or by
force of
paragraph (a))
interference with any vehicle or thing in a public place, or in the lawful
custody of the relevant investigating agency, will be taken to authorise the use
of reasonable force or subterfuge for that purpose; and
(c) the powers conferred by the warrant may be exercised by the
responsible officer or under the authority of the responsible officer at any
time and with such assistance as is necessary.
(4) If the chief officer of the investigating agency is satisfied that the
grounds on which a surveillance device (tracking) warrant was issued have ceased
to exist, the chief officer must, if the warrant is still in force, cancel the
warrant by instrument in writing.
(5) A surveillance device (tracking) warrant may, at any time, be
cancelled by instrument in writing by the chief officer of the investigating
agency.
Division 2—Surveillance
device (general) warrants
This Division applies if, for the purposes of the investigation of a matter
by an investigating agency, the agency requires the authority to do any or all
of the following:
(a) to use 1 or more types of surveillance device (including a
tracking device);
(b) to enter or interfere with any premises for the purposes of
installing, using, maintaining or retrieving 1 or more surveillance
devices;
(c) to interfere with any vehicle or thing for the purposes of installing,
using, maintaining or retrieving 1 or more surveillance devices.
13—Usual
application procedure
(1) An officer of
an investigating agency may, for the purposes of an investigation by the agency,
apply to a judge for a surveillance device (general) warrant authorising
1 or more of the following:
(a) the use of 1 or more surveillance devices (including a tracking
device);
(b) entry to or interference with any premises as reasonably required for
the purposes of installing, using, maintaining or retrieving 1 or more
surveillance devices;
(c) interference with any vehicle or thing as reasonably required for the
purposes of installing, using, maintaining or retrieving 1 or more
surveillance devices.
(2) An officer of an investigating agency may, for the purposes of an
investigation by the agency, apply to a judge for the variation or renewal of a
surveillance device (general) warrant.
(3) Subject to
section 14, an
application must be made by—
(a) providing a judge with an application in writing; and
(b) appearing personally before the judge.
(i) the name of the applicant and the investigating agency to which the
applicant belongs; and
(ii) the applicant's rank or position in that agency; and
(iii) if the applicant is not to be the officer primarily responsible for
executing the warrant—the name of the responsible officer; and
(iv) whether the applicant or responsible officer (or both) are to be
identified in the warrant under a code name; and
(v) the nature and duration of the warrant sought, including the kind of
surveillance device to which the warrant relates; and
(vi) the grounds on which the warrant, or variation or renewal of the
warrant, is sought; and
(b) must be accompanied by an affidavit verifying the
application.
(5) The judge to whom an application is made may require further
information to be given in relation to the application.
14—Remote
application procedure
(1) An officer of an investigating agency may, if the officer believes
that it is impracticable in the circumstances to make an application in
accordance with
section 13,
apply for the issue, variation or renewal of a surveillance device (general)
warrant by fax, email, telephone or other electronic means.
(2) If an application
is made by telephone, the following provisions apply:
(a) the applicant must inform the judge—
(i) of—
(A) the name of the applicant and the investigating agency to which the
applicant belongs; and
(B) the applicant's rank or position in that agency; and
(C) if the applicant is not to be the officer primarily responsible for
executing the warrant—the name of the responsible officer; and
(D) whether the applicant or responsible officer (or both) are to be
identified in the warrant under a code name,
and the judge, on receiving that information, is entitled to assume its
accuracy without further inquiry; and
(ii) of the nature and duration of the warrant sought, including the kind
of surveillance device to which the warrant relates; and
(iii) of the circumstances giving rise to the necessity for the
application to be made by telephone; and
(iv) of the grounds on which the warrant, or variation or renewal of the
warrant, is sought;
(b) the judge may,
on being satisfied as to the circumstances giving rise to the necessity for the
application being made by telephone and the grounds for the issue of a warrant,
and on the applicant giving an undertaking to make an affidavit verifying the
application, make out and sign a surveillance device (general)
warrant;
(c) the warrant is to be taken to have been issued, and comes into force,
when signed by the judge;
(d) the judge must inform the applicant of the terms of the
warrant;
(e) the applicant must
fill out and sign a warrant form (the duplicate surveillance device
(general) warrant) that—
(i) sets out the name of the judge who issued the original warrant and the
terms of the warrant; and
(ii) complies with any other requirements prescribed by
regulation;
(f) the applicant must, as soon as practicable after the issue of the
warrant, forward to the judge an affidavit verifying the application and a copy
of the duplicate surveillance device (general) warrant.
(3) If an application is made by any other means under this section, the
following provisions apply:
(a) the application must specify—
(i) the name of the applicant and the investigating agency to which the
applicant belongs; and
(ii) the applicant's rank or position in that agency; and
(iii) if the applicant is not to be the officer primarily responsible for
executing the warrant—the name of the responsible officer; and
(iv) whether the applicant or responsible officer (or both) are to be
identified in the warrant under a code name; and
(v) the nature and duration of the warrant sought, including the kind of
surveillance device to which the warrant relates; and
(vi) the circumstances giving rise to the necessity for the application to
be made by the particular means; and
(vii) the grounds on which the warrant, or variation or renewal of the
warrant, is sought;
(b) the application must be accompanied (through fax, email or other
electronic means) by an affidavit made by the applicant verifying the
application;
(c) the applicant must be available to speak to the judge by
telephone;
(d) the judge is entitled to assume, without further inquiry, that a
person who identifies himself or herself as the applicant during a telephone
conversation with the judge is indeed the applicant;
(e) the judge may, on being satisfied as to the circumstances giving rise
to the necessity for the application being made by fax, email or other
electronic means and the grounds for the issue of a warrant, make out and sign a
surveillance device (general) warrant;
(f) the warrant is to be taken to have been issued, and comes into force,
when signed by the judge;
(g) the judge must forward the warrant to the applicant by fax, email or
other electronic means.
(4) The judge to whom an application is made may require further
information to be given in relation to the application.
15—Surveillance
device (general) warrant
(1) A judge to whom an application is made may issue a surveillance device
(general) warrant if satisfied that there are, in the circumstances of the case,
reasonable grounds for issuing the warrant, taking into account—
(a) the extent to which the privacy of any person would be likely to be
interfered with by use of the kind of device to which the warrant relates;
and
(b) the gravity of the criminal conduct to which the investigation
relates; and
(c) the significance to the investigation of the information sought to be
obtained; and
(d) the likely effectiveness of the use of the surveillance device in
obtaining the information sought; and
(e) the availability of alternative means of obtaining the information;
and
(f) any other warrant under this Act applied for or issued in relation to
the same matter; and
(g) any other matter the judge considers relevant.
(2) A surveillance
device (general) warrant—
(a) subject to
subsection (3),
must specify—
(i) the name of the applicant; and
(ii) if the applicant is not to be the officer primarily responsible for
executing the warrant—the name of the responsible officer; and
(i) the kind of surveillance device to which the warrant relates;
and
(ii) if the warrant authorises the use of a surveillance device on or in
premises or a vehicle—the premises or vehicle; and
(iii) if the warrant authorises the use of a surveillance device in or on
a thing or a thing of a class—the thing or class of thing; and
(iv) if the warrant
authorises the use of a surveillance device in respect of the conversations,
activities or geographical location of a person—
(A) the name of the person (if known); or
(B) if the name of the person is unknown—that fact and a general
description of the person; and
(v) the period for which the warrant will be in force (being a period not
longer than 90 days); and
(c) may contain—
(i) conditions and limitations; and
(ii) any other matter as the judge thinks fit.
(3) If the judge is
satisfied that the disclosure in the surveillance device (general) warrant of
the name of the applicant or the responsible officer may endanger the safety of
the applicant, the responsible officer or some other person, the warrant may,
instead, specify in respect of either or both of them a unique code approved by
the judge (a code name).
(4) Subject to any
conditions or limitations specified in the surveillance device (general)
warrant—
(a) a warrant
authorising the use of a surveillance device in respect of the conversations,
activities or geographical location of a specified person, or a person whose
identity is unknown, 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—
(i) entry to or
interference with any premises, vehicle or thing as reasonably required to
install, use, maintain or retrieve the device for that purpose; and
(ii) the use of the
device on or about the body of the person; and
(b) a warrant authorising (whether under the terms of the warrant or by
force of
paragraph (a)(i))
entry to or interference with any premises, vehicle or thing will be taken to
authorise—
(i) the use of reasonable force or subterfuge for that purpose;
and
(ii) any action reasonably required to be taken in respect of a vehicle or
thing for the purpose of installing, using, maintaining or retrieving a
surveillance device to which the warrant relates; and
(iii) the extraction and use of electricity for that purpose or for the
use of the surveillance device to which the warrant relates; and
(c) a warrant authorising entry to specified premises will be taken to
authorise non-forcible passage through adjoining or nearby premises (but not
through the interior of any building or structure) as reasonably required for
the purpose of gaining entry to those specified premises; and
(d) the powers conferred by the warrant may be exercised by the
responsible officer or under the authority of the responsible officer at any
time and with such assistance as is necessary.
(5) If the chief officer of the investigating agency is satisfied that the
grounds on which a surveillance device (general) warrant was issued have ceased
to exist, the chief officer must, if the warrant is still in force, cancel the
warrant by instrument in writing.
(6) A surveillance device (general) warrant may, at any time, be cancelled
by instrument in writing by the chief officer of the investigating
agency.
Division 3—Surveillance
device (emergency) authorities
(1) An officer of an
investigating agency may apply to the chief officer of the agency for a
surveillance device (emergency) authority authorising 1 or more of the
following:
(a) the use of 1 or more types of surveillance device;
(b) entry to or interference with any premises as reasonably required for
the purposes of installing, using, maintaining or retrieving 1 or more
surveillance devices;
(c) interference with any vehicle or thing as reasonably required for the
purposes of installing, using, maintaining or retrieving 1 or more
surveillance devices.
(2) An application for a surveillance device (emergency) authority may be
made if the officer suspects on reasonable grounds that—
(a) an imminent threat of serious violence to a person or substantial
damage to property exists and the officer is of the opinion
that—
(i) the use of a surveillance device is immediately necessary for the
purpose of dealing with that threat; and
(ii) the circumstances are so serious and the matter is of such urgency
that the use of a surveillance device is warranted; and
(iii) it is not practicable in the circumstances to apply for a
surveillance device (general) warrant; or
(b) that a serious drug offence or an offence against a law of another
jurisdiction that corresponds to a serious drug offence has been, is being, or
is likely to be, committed and the officer is of the opinion
that—
(i) the use of a surveillance device is immediately necessary for the
purpose of an investigation into that offence, or enabling evidence or
information to be obtained of the commission of that offence, or identifying or
locating the offender; and
(ii) the circumstances are so serious and the matter is of such urgency
that the use of a surveillance device is warranted; and
(iii) it is not practicable in the circumstances to apply for a
surveillance device (general) warrant.
(3) An application for a surveillance device (emergency) authority may be
made in person, in writing, or by fax, email, telephone or any other means of
communication.
17—Surveillance
device (emergency) authority
(1) The chief officer of an investigating agency to whom an application is
made may grant a surveillance device (emergency) authority authorising anything
that could be authorised under a surveillance device (general) warrant if
satisfied that there are, in the circumstances of the case, reasonable grounds
for granting the authority, taking into account—
(a) if it is in relation to an imminent threat of serious violence to a
person or substantial damage to property—
(i) the nature of the threat of serious violence or substantial damage;
and
(ii) the extent to which the issue of a surveillance device (general)
warrant would help reduce or avoid the threat; and
(iii) the extent to which alternative methods of investigation could be
used to help reduce or avoid the threat; and
(iv) how much the use of alternative methods of investigation could help
reduce or avoid the threat; and
(v) the likelihood that the use of alternative methods of investigation
would prejudice the safety of the person or property because of delay or for
some other reason; and
(vi) whether or not it is practicable in the circumstances to apply for a
surveillance device (general) warrant; and
(vii) any other matter the chief officer considers relevant;
(b) if it is in relation to the commission of a serious drug offence or an
offence against a law of another jurisdiction that corresponds to a serious drug
offence—
(i) the nature of the serious and urgent circumstances in respect of which
the surveillance device (emergency) authority is sought; and
(ii) the extent to which alternative methods of investigation could be
used to investigate the offence; and
(iii) whether or not it is practicable in the circumstances to apply for a
surveillance device (general) warrant; and
(iv) any other matter the chief officer considers relevant.
(2) A surveillance
device (emergency) authority—
(a) subject to
subsection (3),
must specify—
(i) the name of the applicant; and
(ii) if the applicant is not to be the officer primarily responsible for
exercising the powers under the authority—the name of the responsible
officer; and
(b) must specify—
(i) the kind of surveillance device to which the authority relates;
and
(ii) if it authorises the use of a surveillance device on or in premises
or a vehicle—the premises or vehicle; and
(iii) if it authorises the use of a surveillance device in or on a thing
or a thing of a class—the thing or class of thing; and
(iv) if it authorises the use of a surveillance device in respect of the
conversations, activities or geographical location of a person—
(A) the name of the person (if known); or
(B) if the name of the person is unknown—that fact and a general
description of the person; and
(v) the period for which the authority will be in force (being a period
not longer than 7 days); and
(c) may contain—
(i) conditions and limitations; and
(ii) any other matter,
as the issuing officer thinks fit.
(3) If the chief
officer of the investigating agency is of the opinion that the disclosure in the
surveillance device (emergency) authority of the name of the applicant or the
responsible officer is likely to endanger the safety of the applicant, the
responsible officer or some other person, the authority may, instead, specify in
respect of either or both of them a unique code approved by the chief officer (a
code name).
(4) Subject to
subsection (5)
and any conditions or limitations specified in the surveillance device
(emergency) authority—
(a) an authority
authorising the use of a surveillance device in respect of the conversations,
activities or geographical location of a specified person, or a person whose
identity is unknown, who, according to the terms of the authority, is suspected
on reasonable grounds of having committed, or being likely to commit, a serious
offence, will be taken to authorise—
(i) entry to or
interference with any premises, vehicle or thing as reasonably required to
install, use, maintain or retrieve the device for that purpose; and
(ii) the use of the device on or about the body of the person;
and
(b) an authority authorising (whether under the terms of the authority or
by force of
paragraph (a)(i))
entry to or interference with any premises, vehicle or thing will be taken to
authorise—
(i) the use of reasonable force or subterfuge for that purpose;
and
(ii) any action reasonably required to be taken in respect of a vehicle or
thing for the purpose of installing, using, maintaining or retrieving a
surveillance device to which the warrant relates; and
(iii) the extraction and use of electricity for that purpose or for the
use of the surveillance device to which the authority relates; and
(c) an authority authorising entry to specified premises will be taken to
authorise non-forcible passage through adjoining or nearby premises (but not
through the interior of any building or structure) as reasonably required for
the purpose of gaining entry to those specified premises; and
(d) the powers conferred by the authority may be exercised by the
responsible officer or under the authority of the responsible officer at any
time and with such assistance as is necessary.
(5) A surveillance
device (emergency) authority may not authorise the installation or use of a
surveillance device outside this jurisdiction.
(6) If the chief officer of the investigating agency is satisfied that the
grounds on which a surveillance device (emergency) authority was granted have
ceased to exist, the chief officer must, if the authority is still in force,
cancel the authority by instrument in writing.
(7) A surveillance device (emergency) authority may, at any time, be
cancelled by instrument in writing by the chief officer of the investigating
agency.
18—Application
for confirmation of surveillance device (emergency) authority
etc
(1) An officer who has
been granted a surveillance device (emergency) authority must, within
2 business days after the authority is granted, if the authority is still
in force, apply to a judge for confirmation of—
(a) the authority; and
(b) the exercise of powers under the authority.
(2) An application
under
subsection (1) must
be made by—
(a) providing a judge with an application in writing; and
(b) appearing personally before the judge.
(3) The written application—
(a) must specify—
(i) the name of the applicant and the investigating agency to which the
applicant belongs; and
(ii) the applicant's rank or position in that agency; and
(iii) the kind of surveillance device to which the surveillance device
(emergency) authority relates; and
(iv) if a surveillance device (general) warrant in relation to the
surveillance device is sought, the following matters:
(A) if the applicant is not to be the officer primarily responsible for
executing the warrant—the name of the responsible officer;
(B) whether the applicant or responsible officer (or both) are to be
identified in the warrant under a code name;
(C) the nature and duration of the warrant sought, including the kind of
surveillance device to which the warrant relates; and
(v) the grounds on which confirmation and the warrant (if any) is sought;
and
(b) must be accompanied by an affidavit verifying the
application.
(4) The judge to whom an application is made may require further
information to be given in relation to the application.
19—Confirmation
of surveillance device (emergency) authority etc
(1) On hearing an
application under
section 18, the
judge—
(a) must—
(i) if satisfied that the granting of the surveillance device (emergency)
authority, and the exercise of powers under the authority, was justified in the
circumstances—
(A) confirm the authority and the exercise of those powers; and
(B) cancel the surveillance device (emergency) authority; and
(ii) if a surveillance device (general) warrant is sought and the judge is
satisfied that there are reasonable grounds to issue a warrant in the
circumstances—issue a surveillance device (general) warrant in accordance
with
section 15;
(b) may, if not satisfied that the circumstances justified the granting of
the surveillance device (emergency) authority, make 1 or more of the
following orders:
(i) an order that the use of the surveillance device cease;
(ii) an order that, subject to any conditions the judge thinks fit, the
device be retrieved;
(iii) an order that any information obtained from or relating to the
exercise of powers under the authority, or any record of that information, be
dealt with in the way specified in the order;
(iv) any other order as the judge thinks fit.
(2) If a judge confirms a surveillance device (emergency) authority, and
the exercise of powers under the authority, evidence obtained through the
exercise of those powers is not inadmissible in any proceedings merely because
the evidence was obtained before the authority was confirmed.
Division 4—Recognition
of corresponding warrants and authorities
(1) A corresponding
warrant may be executed in this State in accordance with its terms as if it were
a surveillance device (tracking) warrant or a surveillance device (general)
warrant (as the case may be) issued under this Part.
(2)
Subsection (1) does
not apply at any time after a corresponding warrant has been
cancelled.
21—Corresponding
emergency authorities
(1) A corresponding
surveillance device (emergency) authority authorises the use of a surveillance
device in accordance with its terms in this State, as if it were a surveillance
device (emergency) authority granted under this Part.
(2)
Subsection (1)
does not apply at any time after a judge orders, under a provision of a
corresponding law, that the use of a surveillance device under the corresponding
surveillance device (emergency) authority cease.
22—Management
of records relating to surveillance device warrants etc
(1) The chief officer of an investigating agency by whom a surveillance
device (tracking) warrant is issued, varied or renewed must cause the
application and the warrant (and any copy of the warrant) as issued, varied or
renewed to be managed in accordance with the regulations.
(2) The chief officer of an investigating agency by whom a surveillance
device (emergency) authority is granted must cause the application and the
authority (and any copy of the authority) to be managed in accordance with the
regulations.
(3) A judge by whom a surveillance device (general) warrant is issued,
varied or renewed must cause each of the following to be managed in accordance
with the rules of the Supreme Court:
(a) the application;
(b) the warrant (and any duplicate or copy of the warrant) as issued,
varied or renewed;
(c) any code name specified in the warrant;
(d) the affidavit verifying the application.
23—Limitations
on use of information or material derived under this Part
(1) A person must not knowingly communicate or publish information or
material derived from the use (whether by that person or another person) of a
surveillance device under an authority under this Part except—
(a) to a person who was a party to the conversation or activity to which
the information or material relates; or
(b) with the consent of each party to the conversation or activity to
which the information or material relates; or
(c) for the purposes of a relevant investigation; or
(d) for the purposes of a relevant action or proceeding; or
(e) otherwise in the course of duty or as required by law; or
(f) if the information or material has been taken or received in public as
evidence in a relevant action or proceeding.
Maximum penalty:
(a) in the case of a body corporate—$75 000;
(b) in the case of a natural person—$15 000 or imprisonment for
3 years.
(2) In this section, a reference to an authority under this
Part is a reference to—
(a) a surveillance device warrant; or
(b) a surveillance device (emergency) authority; or
(c) a corresponding warrant; or
(d) a corresponding surveillance device (emergency) authority.
Part 4—Register,
reports and records
In this Part, a reference to a person to whom this Part
applies is a reference to—
(a) in relation to SA Police—
(i) a police officer; and
(ii) any staff of an administrative unit of the Public Service in respect
of whom the Commissioner of Police has an arrangement with the Minister
administering that unit to make use of their services; and
(b) in relation to the Independent Commissioner Against
Corruption—
(i) an employee engaged, or an investigator appointed, by the Commissioner
under the Independent
Commissioner Against Corruption Act 2012; and
(ii) any staff of an administrative unit of the Public Service in respect
of whom the Commissioner has an arrangement with the Minister administering that
unit to make use of their services; and
(c) an employee of the administrative unit of the Public Service that is,
under the Minister, responsible for the administration of this Act.
(1) The chief officer of an investigating agency (other than the ACC) must
keep a register of warrants and authorities issued to the agency under this
Act.
(2) The register must contain the following information in relation to
each surveillance device warrant issued to the investigating agency (other than
a warrant issued to an officer of the agency during a period of secondment to a
position outside the agency):
(a) in the case of a surveillance device (general)
warrant—
(i) the date of issue of the warrant and the period for which the warrant
is to be in force; and
(ii) the name of the judge who issued the warrant; and
(iii) the name of the applicant for the warrant or, if the warrant
specified a code name in respect of the applicant, that code name; and
(iv) the rank of the applicant for the warrant; and
(v) the name or, if the name is unknown, a general description of the
person subject to the investigation in relation to which the warrant was issued;
and
(vi) if the application for the warrant was by telephone under
section 14—the
date on which the applicant forwarded an affidavit and copy of the duplicate
surveillance device (general) warrant to the judge as required under that
section; and
(vii) if the warrant was issued following confirmation by a judge of a
surveillance device (emergency) authority and the exercise of powers under the
authority under
section 19—that
fact; and
(viii) if an application for variation of the warrant was made—the
date of the application and details of the variation (if any) granted;
and
(ix) the date of any renewal of the warrant and the period for which the
renewed warrant is to be in force; and
(x) the period for which the warrant was actually in force (including any
periods for which it was in force following renewal) and the date on which the
warrant ceased to be in force;
(b) in the case of a surveillance device (tracking)
warrant—
(i) the date of issue of the warrant and the period for which the warrant
is to be in force; and
(ii) the name of the applicant for the warrant or, if the warrant
specified a code name in respect of the applicant, that code name; and
(iii) the rank of the applicant for the warrant; and
(iv) the name or, if the name is unknown, a general description of the
person subject to the investigation in relation to which the warrant was issued;
and
(v) if an application for variation of the warrant was made—the date
of the application and details of the variation (if any) granted; and
(vi) the date of any renewal of the warrant and the period for which the
renewed warrant is to be in force; and
(vii) the period for which the warrant was actually in force (including
any periods for which it was in force following renewal) and the date on which
the warrant ceased to be in force;
(c) in any case—
(i) the dates of any arrests made on the basis or partly on the basis of
information obtained by use of the surveillance device to which the warrant
relates; and
(ii) the dates on which any prosecutions were instituted in which
information obtained by use of the surveillance device formed part of the basis
of the decision to prosecute; and
(iii) the dates on which any persons were found guilty of offences in
consequence of those prosecutions; and
(iv) the dates on which any persons pleaded guilty to the charge of an
offence in consequence of those prosecutions; and
(v) such other matters as may be prescribed by regulation.
(3) The register must contain the following information in relation to
each surveillance device (emergency) authority granted to an officer of the
investigating agency under this Act in respect of a matter:
(a) the date on which the surveillance device (emergency) authority was
granted;
(b) the name of the applicant for the surveillance device (emergency)
authority or, if the authority specified a code name in respect of the
applicant, that code name;
(c) the rank of the applicant;
(d) the kind of surveillance device to which the surveillance device
(emergency) authority related;
(e) if an application was made to a judge under
section 19—whether
the judge did either or both of the following:
(i) confirmed the surveillance device (emergency) authority and the
exercise of powers under the authority;
(ii) issued a surveillance device (general) warrant in respect of the
matter.
(1) The chief officer
of an investigation agency (other than the ACC) must, in relation to
surveillance device warrants issued to officers of the agency under this Act
give to the Minister—
(a) as soon as
practicable after the issue, variation or cancellation of a warrant, a copy of
the warrant, the warrant as varied or the instrument of cancellation (as the
case may be); and
(b) within
3 months after a warrant ceases to be in force, a written report
of—
(i) the use made of information obtained by use of a surveillance device
to which the warrant related; and
(ii) the communication of that information to persons other than officers
of the agency; and
(c) as soon as
practicable (but not later than 2 months) after each 30 June, the
following information relating to the year ending on that
30 June:
(i) in relation to—
(A) applications for surveillance device (tracking) warrants;
and
(B) applications for surveillance device (general) warrants; and
(C) applications for surveillance device (general) warrants by telephone
under
section 14;
and
(D) applications for variation of warrants; and
(E) renewal applications for warrants; and
(F) applications for warrants that included authorisation to enter or
interfere with any premises, vehicle or thing,
how many such applications were made, how many were withdrawn or refused
and how many were successful;
(ii) in relation to surveillance device (emergency)
authorities—
(A) how many applications for surveillance device (emergency) authorities
were made, how many were withdrawn or refused, and how many were successful;
and
(B) how may applications for confirmation of the surveillance device
(emergency) authority and the exercise of powers under the authority were made,
and how many were successful;
(iii) the average of the respective periods specified in original warrants
issued on applications made during that year as the periods for which the
warrants were to be in force;
(iv) the average of the respective periods for which those warrants were
actually in force;
(v) the average of the respective periods specified in renewal warrants
issued on applications made during that year as the periods for which the
renewals were to be in force;
(vi) a general description of—
(A) the uses made during that year of information obtained by use of
surveillance devices to which a warrant related; and
(B) the communication of that information to persons other than officers
of the agency;
(vii) the number of arrests made during that year on the basis or partly
on the basis of information obtained by use of a surveillance device to which a
warrant related;
(viii) —
(A) the number of prosecutions instituted during that period in which
information obtained by such use of a surveillance device formed part of the
basis of the decision to prosecute; and
(B) the number of occasions during that period on which information
obtained by such use of a surveillance device was given in evidence in the
course of a prosecution; and
(C) the number of persons found guilty of an offence in consequence of
those prosecutions during that period; and
(D) the number of persons who pleaded guilty to the charge of an offence
in consequence of those prosecutions during that period; and
(d) a report on any other matter specified by the Minister at a time
specified by the Minister.
(2) The reports and information required to be given to the Minister under
subsection (1)
must distinguish between surveillance device (general) warrants authorising the
use of listening devices and other surveillance device (general)
warrants.
(3) Subject to the
regulations and any determinations of the Minister, the chief officer of an
investigating agency must include in each report to the Minister under
subsection (1)(c)
the following information:
(a) the number of occasions on which a police officer or a person
authorised by an officer of the agency acting in the course of his or her duty
used a listening device under
section 4(3)(a)(iii)
(an approved undercover operation exemption) during the period to
which the report relates;
(b) the number of occasions on which, in prescribed circumstances, an
officer of the agency—
(i) used a listening device otherwise than under an approved undercover
operation exemption, surveillance device (general) warrant or surveillance
device (emergency) authority; or
(ii) used some other surveillance device that was not installed through
the exercise of powers under a surveillance device (general) warrant,
surveillance device (tracking) warrant or surveillance device (emergency)
authority,
during the period to which the report relates;
(c) a general description of—
(i) the uses made during that period of information obtained by such use
of a surveillance device; and
(ii) the communication of that information to persons other than officers
of the agency;
(d) the number of arrests made during that period on the basis or partly
on the basis of information obtained by such use of a surveillance
device;
(e) the number of prosecutions instituted during that period in which
information obtained by such use of a surveillance device formed part of the
basis of the decision to prosecute;
(f) the number of occasions during that period on which information
obtained by such use of a surveillance device was given in evidence in the
course of a prosecution;
(g) the number of persons found guilty of an offence in consequence of
those prosecutions during that period;
(h) the number of persons who pleaded guilty to the charge of an offence
in consequence of those prosecutions during that period;
(i) any other information prescribed by regulation or specified by the
Minister.
(4) The chief officer of an investigating agency must keep such records as
are necessary to enable compliance with this section, including records of the
persons (other than police officers) to whom that information has been
communicated.
(5) The Minister must
cause a report to be prepared on or before 31 October in each year
containing—
(a) the information furnished to the Minister under
subsection (1)(c)
in relation to the year ending on the previous 30 June; and
(b) any similar information relating to warrants issued to members of the
Board of the ACC or members of the staff of the ACC furnished to the Minister by
the ACC in relation to the year ending on the previous 30 June;
and
(c) from reports made to the Minister by the ACC, a general description
of—
(i) the uses made during that year of information obtained by use of
surveillance devices; and
(ii) the communication of that information to persons other than members
of the Board of the ACC or members of the staff of the ACC.
(6) The Minister must, within 12 sitting days of receiving a report
prepared under
subsection (5),
have copies of the report laid before both Houses of Parliament.
27—Control
by investigating agencies of certain records, information and
material
The chief investigating officer of an investigating agency must, in
accordance with the regulations—
(a) keep as records a copy of—
(i) each application for a surveillance device warrant under this Act;
and
(ii) each surveillance device warrant issued under this Act; and
(iii) each application for a surveillance device (emergency) authority
under this Act; and
(b) keep any information or material derived from the use of a
surveillance device under a warrant; and
(c) control, manage access to, and destroy, any such records, information
and material.
A review agency for an investigating agency—
(a) may, at any time, and must, at least once in each period of
6 months, inspect the records of the agency for the purpose of ascertaining
the extent of compliance with this Act; and
(b) must, not later than 2 months after completion of each such
inspection, report in writing to the Minister on the results of the
inspection.
Note—
Under section 55 of the Surveillance Devices Act 2004 of the
Commonwealth, the Commonwealth Ombudsman is required to inspect the records of
the ACC to determine the extent of the ACC’s compliance with this Act.
Under section 61 of that Act, the Commonwealth Ombudsman is required to
report the results of the inspection to the Commonwealth Minister, lay the
report before the Commonwealth Parliament and send a copy of the report to the
Minister administering this Act.
(1) For the purposes of carrying out an inspection under this Part, the
review agency for an investigating agency, or a person authorised for the
purpose by the review agency for an investigating agency—
(a) may, after notifying the chief officer of the agency, enter at any
reasonable time premises occupied by the agency; and
(b) is entitled to have full and free access at all reasonable times to
all records of the agency; and
(c) is, despite any other law, entitled to make copies of, and to take
extracts from, records of the agency; and
(d) may require a person to whom this Part applies to give the review
agency or authorised person such information as the review agency considers
necessary, being information that is in the person's possession, or to which the
person has access, and that is relevant to the inspection.
(2) If the review agency for an investigating agency has reason to believe
that a person to whom this Part applies is able to give information relevant to
an inspection under this Part, the review agency may, by written notice to the
person, require the person to do either or both of the following:
(a) give the information, in writing, signed by the person, at a specified
place and within a specified period;
(b) attend before a specified person at a specified place and within a
specified period or at a specified time on a specified day, in order to answer
questions relevant to the inspection.
(3) If the review agency for an investigating agency has reason to believe
that a person to whom this Part applies is able to give information relevant to
an inspection under this Part but does not know the person's identity, the
review agency may, by written notice to the chief officer of the investigating
agency, require the chief officer or a person nominated by the chief officer to
attend before a specified person at a specified place and within a specified
period or at a specified time on a specified day, in order to answer questions
relevant to the inspection.
(4) Despite any other law, a person is not excused from giving
information, answering a question, or giving access to a document, as and when
required by or under this section, on the ground that it would contravene a law,
would be contrary to the public interest or might tend to incriminate the person
or make the person liable to a penalty.
(5) The following are not admissible in evidence against a person except
in prosecution proceedings for an offence against this Act or for perjury, or in
police disciplinary proceedings:
(a) information or an answer given by the person under this
section;
(b) the fact that the person has given access to a document under this
section;
(c) any information or thing (including a document) obtained in
consequence of the person having given information or an answer, or access to a
document, under this section.
(6) The chief officer of an investigating agency must ensure that a person
to whom this Part applies provides the review agency for the investigating
agency with such assistance in relation to an inspection under this Part as the
review agency reasonably requires.
(7) A person who is required under this section—
(a) to attend before a person; or
(b) to provide information; or
(c) to answer a question,
and who, without reasonable excuse, refuses or fails to comply with that
requirement is guilty of an offence.
Maximum penalty: $15 000 or imprisonment for 3 years.
(8) A person who—
(a) without reasonable excuse, hinders a person exercising powers under
this section; or
(b) gives to a person exercising powers under this section information
knowing it to be false or misleading in a material particular,
is guilty of an offence.
Maximum penalty: $15 000 or imprisonment for 3 years.
30—Offence
to wrongfully disclose information
A person must not knowingly communicate or publish information or material
about a surveillance device warrant or a surveillance device (emergency)
authority except—
(a) as required to do so under this Act; or
(b) for the purposes of a relevant investigation; or
(c) for the purposes of a relevant action or proceeding; or
(d) in the course of proceedings for an offence against this Act;
or
(e) otherwise in the course of duty or as required by law.
Maximum penalty:
(a) in the case of a body corporate—$50 000;
(b) in the case of a natural person—$10 000 or imprisonment for
2 years.
(1) Despite any other Act or law to the contrary, the functions of a chief
officer of an investigating agency under this Act may not be delegated to any
other person except as provided by this section.
(2) A chief officer of an investigating agency may delegate to a senior
officer of the agency any of the chief officer's functions under this
Act.
(3) In this section—
senior officer means—
(a) in relation to SA Police—a police officer of or above the
rank of Superintendent;
(b) in relation to the Independent Commissioner Against
Corruption—an officer or an employee of the Commissioner of a prescribed
class;
(c) in relation to the ACC—
(i) the Director National Operations; or
(ii) a Director; or
(iii) the General Manager National Operations; or
(iv) a member of staff of the ACC who is an SES employee or acting SES
employee (within the meaning of the Australian Crime Commission
Act 2002 of the Commonwealth) and who holds a position that is
prescribed by the regulations for the purposes of this definition.
32—Possession
etc of declared surveillance device
(1) The Minister may,
by notice in the Gazette, declare that this section applies to a surveillance
device or a surveillance device of a class or kind specified in the
notice.
(2) The Minister may, by further notice in the Gazette, revoke or amend a
declaration under
subsection (1).
(3) A person must
not, without the consent of the Minister, have in his or her possession, custody
or control any declared surveillance device.
Maximum penalty:
(a) in the case of a body corporate—$50 000;
(b) in the case of a natural person—$10 000 or imprisonment for
2 years.
(4) The consent of the Minister under this section—
(a) must be given by notice in the Gazette; and
(b) may be expressed to relate to the possession, custody or control of a
surveillance device or to any surveillance device of a class or kind;
and
(c) may be expressed to apply to persons of a specified class;
and
(d) may be expressed to be subject to such conditions, limitations or
restrictions as the Minister considers necessary or expedient; and
(e) may be revoked at any time by the Minister by further notice in the
Gazette (and, on revocation, the consent ceases to have effect).
(5) For the purposes of this section, having the possession, custody or
control of a surveillance device in contravention of a condition, limitation or
restriction imposed by the Minister will be taken to be having the possession,
custody or control of that device without the consent of the Minister.
(6) The Minister may delegate any of his or her powers under this section
to the chief executive of an administrative unit of the Public
Service.
(7) A delegation under this section—
(a) must be in writing; and
(b) may be conditional or unconditional; and
(c) is revocable at will; and
(d) does not prevent the delegator from acting in any manner.
33—Power
to seize surveillance devices etc
(1) If an officer of
an investigating agency suspects on reasonable grounds that—
(a) a person has possession, custody or control of a declared surveillance
device without the consent of the Minister; or
(b) any other offence against this Act has been, is being or is about to
be committed with respect to a surveillance device or information derived from
the use of a surveillance device,
the officer may seize the device or a record of the information.
(2) An officer referred to in
subsection (1)
may—
(a) break into, enter and search any premises in which the officer
suspects on reasonable grounds there is a device or record liable to seizure
under this section; and
(b) stop, detain and search, or detain and search, any vehicle that the
officer suspects on reasonable grounds contains a device or record liable to
seizure under this section; and
(c) detain and search any person who the officer suspects on reasonable
grounds has possession of a device or record liable to seizure under this
section.
(3) If a device or record has been seized under this section, the device
or record must, subject to any order of a court, be returned to its
owner—
(a) if no proceedings are instituted for an offence against this Act
involving the device or record of information—at the expiration of
2 months from the date of seizure;
(b) if such proceedings are instituted—when those proceedings are
finally determined.
34—Imputing
conduct to bodies corporate
(1) For the
purposes of this Act, any conduct engaged in on behalf of a body corporate by an
employee, agent or officer of the body corporate acting within the actual or
apparent scope of his or her employment, or within his or her actual or apparent
authority, is conduct also engaged in by the body corporate.
(2) If an offence under this Act requires proof of knowledge, intention or
recklessness, it is sufficient in proceedings against a body corporate for that
offence to prove that the person referred to in
subsection (1)
had the relevant knowledge, intention or recklessness.
(3) If, for an offence against this Act, mistake of fact is relevant to
determining liability, it is sufficient in proceedings against a body corporate
for that offence if the person referred to in
subsection (1)
made that mistake of fact.
(1) In any proceedings for an offence, an apparently genuine document
purporting to be signed by the chief officer of an investigating agency
certifying that specified action was taken in connection with executing a
specified warrant issued under this Act will, in the absence of evidence to the
contrary, be accepted as proof of the matters so certified.
(2) In any proceedings for an offence, an apparently genuine document
purporting to be signed by the chief officer of an investigating agency
certifying that specified action was taken in connection with the exercise of
powers under a surveillance device (emergency) authority granted under this Act
will, in the absence of evidence to the contrary, be accepted as proof of the
matters so certified.
36—Forfeiture
of surveillance devices
(1) If a person is
convicted of an offence against this Act, the court before which that person was
so convicted may in addition to imposing any other penalty order that a
surveillance device or record of any information or material in connection with
which the offence was committed is forfeited to the Crown.
(2) A surveillance device or record of information or material forfeited
to the Crown pursuant to an order under
subsection (1) may
be retained, destroyed or otherwise disposed of in a manner directed by the
Minister.
(1) The Governor may
make such regulations as are contemplated by, or as are necessary or expedient
for the purposes of, this Act.
(2) Without limiting the effect of
subsection (1),
the regulations may—
(a) make provision relating to warrants, their form and proceedings in
connection with warrants; and
(b) make provision relating to the control and management of information
or material in the possession of the police force derived from the use of
surveillance devices, including access to and the destruction of such
information or material; and
(c) fix fines, not exceeding $5 000, for offences against the
regulations.
Schedule 1—Related
amendments, repeal and transitional provisions
Part 1—Preliminary
In this Schedule, a provision under a heading referring to the amendment of
a specified Act amends the Act so specified.
Part 2—Amendment of Criminal Investigation
(Covert Operations) Act 2009
2—Amendment
of section 3—Interpretation
Section 3(1), definition of undercover
operations—delete "engaging or" and substitute:
who have engaged, are engaging or are
Part 3—Amendment of Director of Public
Prosecutions Act 1991
3—Amendment
of section 12—Annual reports
Section 12(1)—delete ", including the number of applications for
warrants under the Listening
and Surveillance Devices Act 1972 considered, and the number
approved, by the Director"
Part 4—Repeal and transitional
provisions
4—Repeal
and transitional provisions
(1) The Listening
and Surveillance Devices Act 1972 is repealed (the repealed
Act).
(2) A warrant issued under the repealed Act in force immediately before
the commencement of this Part will continue in force in accordance with its
terms for the period for which it was issued under the repealed Act until it
expires or is cancelled (whichever occurs earlier).
(3) Despite any other
provision of this Act, if, immediately before the commencement of this Part, an
investigating agency is lawfully using a tracking device to determine the
geographical location of a person, vehicle or thing in relation to the
investigation of a matter by the agency,
section 6 will be
taken not to apply in relation to the use of the device for a period of
6 months after the commencement of this Part.
(4) Any evidence obtained directly or indirectly as a result of the use of
a tracking device in circumstances referred to in
subclause (3)
is not inadmissible in any proceedings merely because the evidence was obtained
before the commencement of this Part.
(5) Any evidence obtained directly or indirectly as a result of the use of
a listening or surveillance device in accordance with the repealed Act is not
inadmissible in any proceedings merely because the evidence was obtained before
the commencement of this Part.
(6) A notice under section 8 of the repealed Act in force immediately
before the commencement of this Part will be taken to be a notice under
section 32 of this
Act and will have effect according to its terms.
(7) The consent of the Minister given under section 8 of the repealed
Act in force immediately before the commencement of this Part will be taken to
be consent of the Minister given under
section 32 of this
Act and will have effect according to its terms.