New South Wales Bills New South Wales Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Surveillance Devices Bill 2007
Contents
Page
Part 1 Preliminary
1 Name of Act 2
2 Commencement 2
3 Relationship to other laws and matters 2
4 Definitions 2
5 Eligible Judges and Magistrates 9
6 Act to bind Crown 9
Part 2 Regulation of installation, use and maintenance of
surveillance devices
7 Prohibition on installation, use and maintenance of
listening devices 10
8 Installation, use and maintenance of optical surveillance
devices without consent 11
9 Prohibition on installation, use and maintenance of
tracking devices 12
Surveillance Devices Bill 2007
Contents
Page
10 Prohibition on installation, use and maintenance of data
surveillance devices 12
11 Prohibition on communication or publication of private
conversations or recordings of activities 13
12 Possession of record of private conversation or activity 13
13 Manufacture, supply and possession of listening and
other devices for unlawful use 14
14 Communication and publication of information from the
use of a data surveillance device 14
Part 3 Warrants
Division 1 Preliminary
15 Types of warrant 16
16 Who may issue warrants? 16
Division 2 Surveillance device warrants
17 Application for a surveillance device warrant 16
18 Remote application 17
19 Determining the application 18
20 What must a surveillance device warrant contain? 18
21 What a surveillance device warrant authorises 20
22 Extension and variation of surveillance device warrant 22
23 Revocation of surveillance device warrant 23
24 Discontinuance of use of surveillance device under
warrant 23
Division 3 Retrieval warrants
25 Application for a retrieval warrant 24
26 Remote application 24
27 Determining the application 25
28 What must a retrieval warrant contain? 25
29 What a retrieval warrant authorises 26
30 Revocation of retrieval warrant 27
Division 4 Emergency authorisations
31 Emergency use of surveillance devices--threat of serious
personal violence or substantial property damage 28
32 Emergency authorisation--continued use of authorised
surveillance device in participating jurisdiction 28
33 Application for approval after use of surveillance device
without warrant or under emergency authorisation 29
34 Consideration of application 30
35 Eligible Judge may approve emergency use of powers 30
36 Admissibility of evidence 31
Contents page 2
Surveillance Devices Bill 2007
Contents
Page
Part 4 Recognition of corresponding warrants and
authorisations
37 Corresponding warrants 32
38 Corresponding emergency authorisation 32
Part 5 Compliance and monitoring
Division 1 Restrictions on use, communication and
publication of information
39 What is protected information? 33
40 Prohibition on use, communication or publication of
protected information 33
41 Dealing with records obtained by use of surveillance
devices 36
42 Protection of surveillance device technologies and
methods 36
43 Protected information in the custody of a court 37
Division 2 Reporting and record-keeping
44 Reports to eligible Judge or eligible Magistrate and
Attorney General 37
45 Annual reports 39
46 Keeping documents connected with warrants and
emergency authorisations 40
47 Register of warrants and emergency authorisations 40
Division 3 Inspections
48 Inspection of records by Ombudsman 41
49 Report on inspection 41
Division 4 General
50 Evidentiary certificates 42
Part 6 Miscellaneous
51 Particulars of warrants sought under Part 3 to be
notified to Attorney General 44
52 Requirement to inform subject of surveillance 45
53 Use of assumed names or code-names in warrants 45
54 Service of documents 45
55 Time for instituting proceedings for certain offences 46
56 Consent of Attorney General to prosecutions 46
57 Offences by corporations 46
58 Orders for forfeiture 47
59 Regulations 47
Contents page 3
Surveillance Devices Bill 2007
Contents
Page
60 Savings, transitional and other provisions 48
61 Amendment of other Acts and regulations 48
62 Repeal of Listening Devices Act 1984 48
63 Review of Act 48
Schedule 1 Savings, transitional and other provisions 49
Schedule 2 Amendment of Acts and regulations 51
Contents page 4
I certify that this public bill, which originated in the Legislative Assembly, has
finally passed the Legislative Council and the Legislative Assembly of New
South Wales.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2007
New South Wales
Surveillance Devices Bill 2007
Act No , 2007
An Act to regulate the installation, use, maintenance and retrieval of surveillance
devices; to repeal the Listening Devices Act 1984; and for other purposes.
I have examined this bill and find it to correspond in all respects with the bill as
finally passed by both Houses.
Assistant Speaker of the Legislative Assembly.
Clause 1 Surveillance Devices Bill 2007
Part 1 Preliminary
The Legislature of New South Wales enacts:
Part 1 Preliminary
1 Name of Act
This Act is the Surveillance Devices Act 2007.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Relationship to other laws and matters
(1) Except where there is express provision to the contrary, this Act is not
intended to affect any other law of the State that prohibits or regulates
the use of surveillance devices.
Note. For example, the Workplace Surveillance Act 2005 contains certain
requirements in relation to camera surveillance. The applicable requirements of
both that Act and this Act will need to be complied with if camera surveillance is
carried out.
(2) This Act is not intended to limit a discretion a court has:
(a) to admit or exclude evidence in any proceeding, or
(b) to stay criminal proceedings in the interests of justice.
(3) For the avoidance of doubt, it is intended that a warrant may be issued,
or an emergency authorisation given, in this jurisdiction under this Act
for the installation, use, maintenance or retrieval of a surveillance
device in this jurisdiction or a participating jurisdiction, or both.
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.
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,
Page 2
Surveillance Devices Bill 2007 Clause 4
Preliminary Part 1
(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 Commissioner for the Independent Commission Against
Corruption,
(e) in relation to the Police Integrity Commission--the
Commissioner for the Police Integrity Commission,
(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.
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.
Page 3
Clause 4 Surveillance Devices Bill 2007
Part 1 Preliminary
function includes a power, authority or duty.
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 Police Integrity 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--a
member of the Commission, or a member of the staff of the
Commission, within the meaning of the New South Wales Crime
Commission Act 1985,
(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 Police Integrity Commission--an officer of the
Commission within the meaning of the Police Integrity
Commission Act 1996,
(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.
Page 4
Surveillance Devices Bill 2007 Clause 4
Preliminary Part 1
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,
Page 5
Clause 4 Surveillance Devices Bill 2007
Part 1 Preliminary
(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,
Page 6
Surveillance Devices Bill 2007 Clause 4
Preliminary Part 1
(m) a public or private hearing before the Police Integrity
Commission or an inquiry before the Inspector of the Police
Integrity Commission,
(n) a hearing before the New South Wales Crime Commission,
(o) an examination before the Australian Crime Commission.
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 Commissioner for the Independent Commission Against
Corruption,
(d) in relation to the Police Integrity Commission--the
Commissioner for the Police Integrity 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.
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).
Page 7
Clause 4 Surveillance Devices Bill 2007
Part 1 Preliminary
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.
(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.
Page 8
Surveillance Devices Bill 2007 Clause 5
Preliminary Part 1
5 Eligible Judges and Magistrates
(1) In this Act:
eligible Judge means a Judge in relation to whom a consent under
subsection (2) and a declaration under subsection (3) are in force.
eligible Magistrate means a Magistrate in relation to whom a consent
under subsection (2) and a declaration under subsection (3) are in force.
Judge means a person who is a Judge of the Supreme Court.
(2) A Judge or Magistrate may, by instrument in writing, consent to being
the subject of a declaration by the Attorney General under subsection
(3).
(3) The Attorney General may, by instrument in writing, declare Judges or
Magistrates in relation to whom consents are in force under subsection
(2) to be eligible Judges and eligible Magistrates, respectively, for the
purposes of this Act.
(4) An eligible Judge has, in relation to the exercise of a function conferred
on an eligible Judge by this Act, the same protection and immunity as a
Judge of the Supreme Court has in relation to proceedings in the
Supreme Court.
(5) An eligible Magistrate has, in relation to the exercise of a function
conferred on an eligible Magistrate by this Act, the same protection and
immunity as a Magistrate has in relation to proceedings in a Local
Court.
(6) A Judge or Magistrate who has given consent under this section may,
by instrument in writing, revoke the consent.
(7) The Attorney General may, by instrument in writing, amend or revoke
a declaration under this section.
6 Act to bind Crown
This Act binds the Crown in right of New South Wales and, in so far as
the legislative power of the Parliament of New South Wales permits, the
Crown in all its other capacities.
Page 9
Clause 7 Surveillance Devices Bill 2007
Part 2 Regulation of installation, use and maintenance of surveillance devices
Part 2 Regulation of installation, use and
maintenance of surveillance devices
Note. Offences in this Part must be dealt with on indictment (see section 5 of the Criminal
Procedure Act 1986). However, those listed in Part 10 of Table 2 of Schedule 1 to that Act may
be dealt with summarily.
7 Prohibition on installation, use and maintenance of listening devices
(1) 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: 500 penalty units (in the case of a corporation) or
100 penalty units or 5 years imprisonment, or both (in any other case).
(2) Subsection (1) does not apply to the following:
(a) the installation, use or maintenance of a listening device in
accordance with a warrant, emergency authorisation,
corresponding warrant or corresponding emergency
authorisation,
(b) the installation, use or maintenance of a listening device in
accordance with the Telecommunications (Interception and
Access) Act 1979, or any other law, of the Commonwealth,
(c) the unintentional hearing of a private conversation by means of a
listening device,
(d) the use of a listening device to record a refusal to consent to the
recording of an interview by a member of the NSW Police Force
in connection with the commission of an offence by a person
suspected of having committed the offence,
(e) the use of a listening device and any enhancement equipment in
relation to the device solely for the purposes of the location and
retrieval of the device or equipment.
(3) Subsection (1) (b) does not apply to the use of a listening device by a
party to a private conversation if:
(a) all of the principal parties to the conversation consent, expressly
or impliedly, to the listening device being so used, or
(b) a principal party to the conversation consents to the listening
device being so used and the recording of the conversation:
(i) is reasonably necessary for the protection of the lawful
interests of that principal party, or
Page 10
Surveillance Devices Bill 2007 Clause 8
Regulation of installation, use and maintenance of surveillance devices Part 2
(ii) is not made for the purpose of communicating or
publishing the conversation, or a report of the
conversation, to persons who are not parties to the
conversation.
(4) Subsection (1) does not apply to the use of a listening device to record,
monitor or listen to a private conversation if:
(a) a law enforcement officer is a party to the private conversation,
and
(b) the law enforcement officer is a participant (within the meaning
of the Law Enforcement (Controlled Operations) Act 1997) in an
authorised operation (within the meaning of that Act) who is
using an assumed name or assumed identity.
8 Installation, use and maintenance of optical surveillance devices without
consent
(1) A person must not knowingly install, use or maintain an optical
surveillance device on or within premises or a vehicle or on any other
object, to record visually or observe the carrying on of an activity if the
installation, use or maintenance of the device involves:
(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, or
(b) interference with the vehicle or other object without the express
or implied consent of the person having lawful possession or
lawful control of the vehicle or object.
Maximum penalty: 500 penalty units (in the case of a corporation) or
100 penalty units or 5 years imprisonment, or both (in any other case).
(2) Subsection (1) does not apply to the following:
(a) the installation, use or maintenance of an optical surveillance
device in accordance with a warrant, emergency authorisation,
corresponding warrant or corresponding emergency
authorisation,
(b) the installation, use or maintenance of an optical surveillance
device in accordance with a law of the Commonwealth,
(c) the use of an optical surveillance device and any enhancement
equipment in relation to the device solely for the purpose of the
location and retrieval of the device or equipment.
Page 11
Clause 9 Surveillance Devices Bill 2007
Part 2 Regulation of installation, use and maintenance of surveillance devices
9 Prohibition on installation, use and maintenance of tracking devices
(1) 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) an object--without the express or implied consent of a person in
lawful possession or having lawful control of that object.
Maximum penalty: 500 penalty units (in the case of a corporation) or
100 penalty units or 5 years imprisonment, or both (in any other case).
(2) Subsection (1) does not apply to the following:
(a) the installation, use or maintenance of a tracking device in
accordance with a warrant, emergency authorisation,
corresponding warrant or corresponding emergency
authorisation,
(b) the installation, use or maintenance of a tracking device in
accordance with a law of the Commonwealth,
(c) the installation, use or maintenance of a tracking device for a
lawful purpose.
10 Prohibition on installation, use and maintenance of data surveillance
devices
(1) A person must not knowingly install, use or maintain a data surveillance
device on or in premises to record or monitor the input of information
into, or the output of information from, a computer on the premises if
the installation, use or maintenance of the device involves:
(a) entry onto or into the premises without the express or implied
consent of the owner or occupier of the premises, or
(b) interference with the computer or a computer network on the
premises without the express or implied consent of the person
having lawful possession or lawful control of the computer or
computer network.
Maximum penalty: 500 penalty units (in the case of a corporation) or
100 penalty units or 5 years imprisonment, or both (in any other case).
(2) Subsection (1) does not apply to the following:
(a) the installation, use or maintenance of a data surveillance device
in accordance with a warrant, emergency authorisation,
corresponding warrant or corresponding emergency
authorisation,
(b) the installation, use or maintenance of a data surveillance device
in accordance with a law of the Commonwealth.
Page 12
Surveillance Devices Bill 2007 Clause 11
Regulation of installation, use and maintenance of surveillance devices Part 2
11 Prohibition on communication or publication of private conversations or
recordings of activities
(1) A person must not publish, or communicate to any person, a private
conversation or a record of the carrying on of an activity, or a report of
a private conversation or carrying on of an activity, that has come to the
person's knowledge as a direct or indirect result of the use of a listening
device, an optical surveillance device or a tracking device in
contravention of a provision of this Part.
Maximum penalty: 500 penalty units (in the case of a corporation) or
100 penalty units or 5 years imprisonment, or both (in any other case).
(2) Subsection (1) does not apply to the following:
(a) if the communication or publication is made:
(i) to a party to the private conversation or activity, or
(ii) with the consent, express or implied, of all the principal
parties to the private conversation or activity, or
(iii) for the purpose of investigating or prosecuting an offence
against this section, or
(iv) in the course of proceedings for an offence against this Act
or the regulations,
(b) if the communication or publication is no more than is reasonably
necessary in connection with an imminent threat of:
(i) serious violence to persons or of substantial damage to
property, or
(ii) commission of a serious narcotics offence.
(3) A person who obtains knowledge of a private conversation or activity
in a manner that does not involve a contravention of a provision 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.
12 Possession of record of private conversation or activity
(1) A person must not possess a record of a private conversation or the
carrying on of an activity knowing that it has been obtained, directly or
indirectly, by the use of a listening device, optical surveillance device
or tracking device in contravention of this Part.
Maximum penalty: 500 penalty units (in the case of a corporation) or
100 penalty units or 5 years imprisonment, or both (in any other case).
(2) Subsection (1) does not apply where the record is in the possession of
the person:
Page 13
Clause 13 Surveillance Devices Bill 2007
Part 2 Regulation of installation, use and maintenance of surveillance devices
(a) in connection with proceedings for an offence against this Act or
the regulations, or
(b) with the consent, express or implied, of all of the principal parties
to the private conversation or persons who took part in the
activity, or
(c) as a consequence of a communication or publication of that
record to that person in circumstances that do not constitute a
contravention of this Part.
13 Manufacture, supply and possession of listening and other devices for
unlawful use
(1) A person must not:
(a) manufacture, or
(b) supply or offer to supply, or
(c) possess,
a data surveillance device, listening device, optical surveillance device
or tracking device with the intention of using it, or it being used, in
contravention of this Part.
Maximum penalty: 500 penalty units (in the case of a corporation) or
100 penalty units or 5 years imprisonment, or both (in any other case).
(2) In subsection (1), supply includes sell and distribute.
14 Communication and publication of information from the use of a data
surveillance device
(1) A person must not publish, or communicate to any person, any
information regarding the input of information into, or the output of
information from, a computer obtained as a direct or indirect result of
the use of a data surveillance device in contravention of this Part.
Maximum penalty: 500 penalty units (in the case of a corporation) or
100 penalty units or 5 years imprisonment, or both (in any other case).
(2) Subsection (1) does not apply to the following:
(a) to a communication or publication made:
(i) to the person having lawful possession or control of the
computer, or
(ii) with the consent, express or implied, of the person having
lawful possession or lawful control of the computer, or
(iii) for the purpose of investigating or prosecuting an offence
against this section, or
(iv) in the course of proceedings for an offence against this Act
or the regulations,
Page 14
Surveillance Devices Bill 2007 Clause 14
Regulation of installation, use and maintenance of surveillance devices Part 2
(b) if the communication or publication is no more than is reasonably
necessary in connection with an imminent threat of:
(i) serious violence to persons or substantial damage to
property, or
(ii) the commission of a serious narcotics offence.
(3) A person who obtains information in a manner that does not involve a
contravention of this Part is not prevented from publishing or
communicating the information so obtained even if the same
information was also obtained in a manner that contravened this Part.
Page 15
Clause 15 Surveillance Devices Bill 2007
Part 3 Warrants
Part 3 Warrants
Division 1 Preliminary
15 Types of warrant
(1) The following types of warrant may be issued under this Part:
(a) a surveillance device warrant,
(b) a retrieval warrant.
(2) A warrant may be issued in respect of one or more kinds of surveillance
devices and more than one surveillance device of the same kind.
16 Who may issue warrants?
(1) An eligible Judge may issue any warrant under this Part.
(2) An eligible Magistrate may issue:
(a) a surveillance device warrant that authorises the use of a tracking
device only, or
(b) a retrieval warrant in respect of a tracking device under a warrant
referred to in paragraph (a) if an eligible Magistrate issued the
original warrant.
Division 2 Surveillance device warrants
17 Application for a surveillance device warrant
(1) A law enforcement officer (or another person on his or her behalf) may
apply for the issue of a surveillance device warrant if the law
enforcement officer on reasonable grounds suspects or believes that:
(a) a relevant offence has been, is being, is about to be or is likely to
be committed, and
(b) an investigation into that offence is being, will be or is likely to
be conducted in this jurisdiction or in this jurisdiction and in one
or more participating jurisdictions, and
(c) the use of a surveillance device is necessary for the purpose of an
investigation into that offence to enable evidence to be obtained
of the commission of that offence or the identity or location of the
offender.
(2) The application may be made to:
(a) an eligible Judge in any case, or
Page 16
Surveillance Devices Bill 2007 Clause 18
Warrants Part 3
(b) an eligible Magistrate in the case of an application for a
surveillance device warrant authorising the use of a tracking
device only.
(3) An application:
(a) must specify:
(i) the name of the applicant, and
(ii) the nature and duration of the warrant sought, including the
kind of surveillance device sought to be authorised, and
(b) subject to this section, must be supported by an affidavit setting
out the grounds on which the warrant is sought.
(4) If a law enforcement officer believes that:
(a) the immediate use of a surveillance device is necessary for a
purpose referred to in subsection (1) (c), and
(b) it is impracticable for an affidavit to be sworn before an
application for a warrant is made,
an application for a warrant may be made before an affidavit is prepared
or sworn.
(5) If subsection (4) applies, the applicant must:
(a) provide as much information as the eligible Judge or eligible
Magistrate considers is reasonably practicable in the
circumstances, and
(b) not later than 72 hours following the making of the application,
send a duly sworn affidavit to the eligible Judge or eligible
Magistrate, whether or not a warrant has been issued.
(6) An application for a warrant is not to be heard in open court.
18 Remote application
(1) If a law enforcement officer believes that it is impracticable for an
application for a surveillance device warrant to be made in person or
that the immediate use of a surveillance device is necessary, the
application may be made under section 17 by telephone, fax, e-mail or
any other means of communication.
(2) If transmission by fax is available and an affidavit has been prepared,
the person applying must transmit a copy of the affidavit, whether
sworn or unsworn, to the eligible Judge or eligible Magistrate who is to
determine the application.
Page 17
Clause 19 Surveillance Devices Bill 2007
Part 3 Warrants
19 Determining the application
(1) An eligible Judge or eligible Magistrate may issue a surveillance device
warrant if satisfied:
(a) that there are reasonable grounds for the suspicion or belief
founding the application for the warrant, and
(b) in the case of an unsworn application--that it would have been
impracticable for the application to have been prepared or sworn
before the application was made, and
(c) in the case of a remote application--that it would have been
impracticable for the application to have been made in person or
that the application could not be made in person because the
surveillance device needed to be used immediately.
(2) In determining whether a surveillance device warrant should be issued,
the eligible Judge or eligible Magistrate must have regard to:
(a) the nature and gravity of the alleged offence in respect of which
the warrant is sought, and
(b) the extent to which the privacy of any person is likely to be
affected, and
(c) the existence of any alternative means of obtaining the evidence
or information sought to be obtained and the extent to which
those means may assist or prejudice the investigation, and
(d) the extent to which the information sought to be obtained would
assist the investigation, and
(e) the evidentiary value of any information sought to be obtained,
and
(f) any previous warrant sought or issued under this Part or a
corresponding law (if known) in connection with the same
offence.
20 What must a surveillance device warrant contain?
(1) A surveillance device warrant must:
(a) state that the eligible Judge or eligible Magistrate is satisfied of
the matters referred to in section 19 (1) and has had regard to the
matters referred to in section 19 (2), and
(b) specify:
(i) the name of the applicant, and
(ii) the alleged offence in respect of which the warrant is
issued, and
(iii) the date the warrant is issued, and
Page 18
Surveillance Devices Bill 2007 Clause 20
Warrants Part 3
(iv) the kind of surveillance device authorised to be used, and
(v) if the warrant authorises the use of a surveillance device on
or in premises or a vehicle--the premises or vehicle on or
in which the use of the surveillance device is authorised,
and
(vi) if the warrant authorises the use of a surveillance device in
or on an object or class of object--the object or class of
object in or on which the use of the surveillance device is
authorised, and
(vii) if the warrant authorises the use of a surveillance device on
or about the body of a person--the name of the person, and
(viii) if the warrant authorises the use of a surveillance device in
respect of the conversations, activities or geographical
location of a person--the name of the person (if known),
and
(ix) the period during which the warrant is in force, being a
period not exceeding 90 days, and
(x) the name of the law enforcement officer primarily
responsible for executing the warrant, and
(xi) any conditions subject to which premises or vehicle may
be entered, or a surveillance device used, under the
warrant.
(2) In the case of a warrant referred to in subsection (1) (b) (vii), if the
identity of the person is unknown, the warrant must state that fact.
(3) A warrant must be signed by the eligible Judge or eligible Magistrate
issuing it and include his or her name.
(4) If an eligible Judge or eligible Magistrate issues a warrant on a remote
application:
(a) the eligible Judge or eligible Magistrate must inform the
applicant of:
(i) the terms of the warrant, and
(ii) the date on which and the time at which the warrant was
issued,
and cause those details to be entered in a register kept by the
Judge or Magistrate for that purpose, and
(b) the Judge or Magistrate must provide the applicant with a copy of
the warrant as soon as possible.
Page 19
Clause 21 Surveillance Devices Bill 2007
Part 3 Warrants
21 What a surveillance device warrant authorises
(1) A surveillance device warrant may authorise, as specified in the
warrant, any one or more of the following:
(a) the use of a surveillance device on or in specified premises or a
vehicle,
(b) the use of a surveillance device in or on a specified object or class
of object,
(c) 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,
(d) the use of a surveillance device on or about the body of a
specified person.
(2) A surveillance device warrant authorises:
(a) for a warrant of a kind referred to in subsection (1) (a):
(i) the installation, use and maintenance of a surveillance
device of the kind specified in the warrant on or in the
specified premises or vehicle, and
(ii) the entry, by force if necessary, onto or into the premises
or vehicle, or other specified premises adjoining or
providing access to the premises, for any of the purposes
referred to in subparagraph (i) or subsection (3), and
(b) for a warrant of a kind referred to in subsection (1) (b):
(i) the installation, use and maintenance of a surveillance
device of the kind specified in the warrant in or on the
specified object or an object of the specified class, and
(ii) the entry, by force if necessary, onto or into any premises
or vehicle where the object, or an object of the specified
class, is reasonably believed to be or is likely to be, or other
premises adjoining or providing access to those premises,
for any of the purposes referred to in subparagraph (i) or
subsection (3), and
(c) for a warrant of a kind referred to in subsection (1) (c):
(i) the installation, use and maintenance of a surveillance
device of the kind specified in the warrant, on or in
premises or a vehicle where the person is reasonably
believed to be or likely to be in the future, and
(ii) the entry, by force if necessary, onto or into the premises
or vehicle referred to in subparagraph (i), or other premises
adjoining or providing access to those premises, for any of
the purposes referred to in subparagraph (i) or subsection
(3), and
Page 20
Surveillance Devices Bill 2007 Clause 21
Warrants Part 3
(d) for a warrant of a kind referred to in subsection (1) (d)--the use
of the surveillance device of the kind specified in the warrant on
or about the body of the person specified in the warrant.
(3) Each warrant also authorises:
(a) the retrieval of the surveillance device, and
(b) the installation, use, maintenance and retrieval of any
enhancement equipment in relation to the surveillance device,
and
(c) the use of an assumed identity for the purpose of the installation,
use, maintenance or retrieval of the surveillance device or
enhancement equipment, and
(d) the disconnection of, or otherwise making inoperative, any
security system for the purpose of the installation, maintenance
or retrieval of the surveillance device or enhancement equipment,
and
(e) the temporary removal of an object or vehicle from premises for
the purpose of the installation, maintenance or retrieval of the
surveillance device or enhancement equipment and the return of
the object or vehicle to the premises, and
(f) the breaking open of anything for the purpose of the installation,
maintenance or retrieval of the surveillance device or
enhancement equipment, and
(g) the connection of the device or enhancement equipment to an
electricity supply system and the use of electricity from that
system to operate the surveillance device or enhancement
equipment, and
(h) the connection of the device or equipment to a
telecommunications system or network and the use of that system
or network in connection with the operation of the surveillance
device or enhancement equipment, and
(i) the provision of assistance or technical expertise to the law
enforcement officer named in the warrant in the installation, use,
maintenance or retrieval of the surveillance device or
enhancement equipment under the warrant.
(4) If a surveillance device remains on or in premises or a vehicle after the
expiry of the surveillance device warrant authorising its installation, use
and maintenance, the warrant is taken also to authorise, for the period
of 10 days after that expiry, any action to be taken in respect of the
retrieval of the device that would be authorised if the surveillance
device warrant were a retrieval warrant.
Note. Section 29 specifies the action that is authorised to be taken by a retrieval
warrant. If a surveillance device remains on or in premises or vehicle for more
Page 21
Clause 22 Surveillance Devices Bill 2007
Part 3 Warrants
than 10 days after its expiry, a retrieval warrant must be obtained under Division
3 to authorise retrieval of the device and any enhancement equipment in
relation to it.
(5) A surveillance device warrant may authorise the doing of anything
reasonably necessary to conceal the fact that anything has been done in
relation to the installation, use, maintenance or retrieval of a
surveillance device or enhancement equipment under the warrant.
(6) A law enforcement officer may use a surveillance device under a
warrant only if he or she is acting in the performance of his or her duty.
(7) This section applies to a warrant subject to any conditions specified in
the warrant.
(8) Nothing in this section authorises the doing of anything for which a
warrant would be required under the Telecommunications (Interception
and Access) Act 1979 of the Commonwealth.
22 Extension and variation of surveillance device warrant
(1) A law enforcement officer to whom a surveillance device warrant has
been issued (or another person on his or her behalf) may apply, at any
time before expiry of the warrant:
(a) for an extension of the warrant for a period not exceeding 90 days
from the day on which it would otherwise expire, or
(b) for a variation of any of the other terms of the warrant.
(2) The application is to be made to:
(a) an eligible Judge, if the warrant was issued by an eligible Judge,
or
(b) an eligible Magistrate, if the warrant was issued by an eligible
Magistrate.
(3) Sections 17 and 18 apply, with any necessary changes, to an application
under this section as if it were an application for a warrant.
(4) The eligible Judge or eligible Magistrate may grant an application,
subject to any conditions he or she thinks fit, if satisfied that the matters
referred to in section 19 (1) still exist, having regard to the matters in
section 19 (2).
(5) An eligible Judge or eligible Magistrate who grants an application must
endorse the new expiry date or the other varied term on the original
warrant.
(6) An application in respect of a warrant may be made under this section
more than once.
Page 22
Surveillance Devices Bill 2007 Clause 23
Warrants Part 3
23 Revocation of surveillance device warrant
(1) A surveillance device warrant may be revoked at any time before the
expiration of the period of validity specified in it by:
(a) an eligible Judge, if an eligible Judge issued the warrant, or
(b) an eligible Magistrate, if an eligible Magistrate issued the
warrant.
(2) An eligible Judge or eligible Magistrate may revoke a surveillance
device warrant on application by or on behalf of a law enforcement
officer.
(3) The eligible Judge or eligible Magistrate who revokes a warrant on the
application of a law enforcement officer is taken to have notified the
chief officer of the law enforcement agency of which the law
enforcement officer to whom the warrant was issued is a member when
the eligible Judge or eligible Magistrate revokes the warrant.
24 Discontinuance of use of surveillance device under warrant
(1) This section applies if a surveillance device warrant is issued to a law
enforcement officer.
(2) If the chief officer of the law enforcement agency of which the law
enforcement officer concerned is a member is satisfied that the use of a
surveillance device under the warrant is no longer necessary for the
purpose of enabling evidence to be obtained of the commission of the
relevant offence or the identity or location of the offender, the chief
officer must:
(a) take the steps necessary to ensure that use of the surveillance
device authorised by the warrant is discontinued as soon as
practicable, and
(b) cause an application to be made for the revocation of the warrant
under section 23.
(3) If the chief officer is notified that the warrant has been revoked under
section 23, he or she must take the steps necessary to ensure that use of
the surveillance device authorised by the warrant is discontinued
immediately.
(4) If the law enforcement officer to whom the warrant is issued, or who is
primarily responsible for executing the warrant, believes that the use of
a surveillance device under the warrant is no longer necessary for the
purpose of enabling evidence to be obtained of the commission of the
relevant offence or the identity or location of the offender, he or she
must inform the chief officer of the law enforcement agency
immediately.
Page 23
Clause 25 Surveillance Devices Bill 2007
Part 3 Warrants
Division 3 Retrieval warrants
25 Application for a retrieval warrant
(1) A law enforcement officer (or another person on his or her behalf) may
apply for the issue of a retrieval warrant in respect of a surveillance
device that was lawfully installed on premises, or in or on a vehicle or
other object, under a surveillance device warrant and which the law
enforcement officer on reasonable grounds suspects or believes is still
on those premises or in or on that vehicle or object, or on other premises
or in or on another vehicle or other object.
(2) The application may be made to:
(a) an eligible Judge in any case, or
(b) an eligible Magistrate in the case of an application for a retrieval
warrant authorising the retrieval of a tracking device only.
(3) Subject to this section, an application must be supported by an affidavit
setting out the grounds on which the warrant is sought.
(4) If a law enforcement officer believes that:
(a) the immediate retrieval of a surveillance device is necessary, and
(b) it is impracticable for an affidavit to be prepared or sworn before
an application for a warrant is made,
an application for a warrant may be made before an affidavit is prepared
or sworn.
(5) If subsection (4) applies, the applicant must:
(a) provide as much information as the eligible Judge or eligible
Magistrate considers is reasonably practicable in the
circumstances, and
(b) not later than 72 hours following the making of the application,
send a duly sworn affidavit to the eligible Judge or eligible
Magistrate who determined the application, whether or not a
warrant has been issued.
(6) An application for a retrieval warrant is not to be heard in open court.
26 Remote application
(1) If a law enforcement officer believes that it is impracticable for an
application for a retrieval warrant to be made in person, the application
may be made under section 25 by telephone, fax, e-mail or any other
means of communication.
(2) If transmission by fax is available and an affidavit has been prepared,
the person applying must transmit a copy of the affidavit, whether
Page 24
Surveillance Devices Bill 2007 Clause 27
Warrants Part 3
sworn or unsworn, to the eligible Judge or eligible Magistrate who is to
determine the application.
27 Determining the application
(1) An eligible Judge or eligible Magistrate may issue a retrieval warrant if
the Judge or Magistrate is satisfied:
(a) that there are reasonable grounds for the suspicion or belief
founding the application for the warrant, and
(b) in the case of an unsworn application--that it would be
impracticable for an affidavit to have been sworn before the
application was made, and
(c) in the case of a remote application--that it would have been
impracticable for the application to have been made in person.
(2) In determining whether a retrieval warrant should be issued, the eligible
Judge or eligible Magistrate must have regard to:
(a) the extent to which the privacy of any person is likely to be
affected, and
(b) the public interest in retrieving the device sought to be retrieved.
28 What must a retrieval warrant contain?
(1) A retrieval warrant must:
(a) state that the eligible Judge or eligible Magistrate is satisfied of
the matters referred to in section 27 (1) and has had regard to the
matters referred to in section 27 (2), and
(b) specify:
(i) the name of the applicant, and
(ii) the date the warrant is issued, and
(iii) the kind of surveillance device authorised to be retrieved,
and
(iv) the premises or vehicle or other object from which the
surveillance device is to be retrieved, and
(v) the period (not exceeding 90 days) during which the
warrant is in force, and
(vi) the name of the law enforcement officer to whom the
warrant is issued, or who is primarily responsible for
executing the warrant, and
(vii) the conditions subject to which premises or a vehicle may
be entered under the warrant.
(2) A warrant must be signed by the eligible Judge or eligible Magistrate
issuing it and include his or her name.
Page 25
Clause 29 Surveillance Devices Bill 2007
Part 3 Warrants
(3) If the eligible Judge or eligible Magistrate issues a warrant on a remote
application:
(a) the Judge or Magistrate must inform the applicant of:
(i) the terms of the warrant, and
(ii) the date on which and the time at which the warrant was
issued,
and cause those details to be entered in a register kept by the
eligible Judge or eligible Magistrate for that purpose, and
(b) the eligible Judge or eligible Magistrate must provide the
applicant with a copy of the warrant as soon as practicable.
29 What a retrieval warrant authorises
(1) A retrieval warrant (subject to any conditions specified in it) authorises:
(a) the retrieval of the surveillance device specified in the warrant
and any enhancement equipment in relation to the device, and
(b) the entry, by force if necessary, onto or into the premises or
vehicle where the surveillance device is reasonably believed to
be, or other premises adjoining or providing access to those
premises, for the purpose of retrieving the device and equipment,
and
(c) the use of an assumed identity for the purpose of retrieval of the
device and equipment, and
(d) the disconnection of, or otherwise making inoperative, any
security system for the purpose of retrieving the device or
equipment, and
(e) the temporary removal of an object or vehicle from premises for
the purpose of retrieving the device or equipment and the return
of the object or vehicle to the premises, and
(f) the breaking open of any thing for the purpose of the retrieval of
the device and equipment, and
(g) if the device or equipment is installed on or in an object, the
temporary removal of the object from any place where it is
situated for the purpose of the retrieval of the device and
equipment and the return of the object to that place, and
(h) the provision of assistance or technical expertise to the law
enforcement officer named in the warrant in the retrieval of the
device or equipment.
(2) The warrant also authorises the use of the surveillance device and any
enhancement equipment in relation to the device solely for the purposes
of the location and retrieval of the device or equipment.
Page 26
Surveillance Devices Bill 2007 Clause 30
Warrants Part 3
(3) Any information obtained from the use of a surveillance device and any
enhancement equipment for the purposes of the location and retrieval of
the device or equipment under subsection (2) must not be used,
communicated or published for any other purpose and is inadmissible
as evidence in any legal proceedings.
(4) A retrieval warrant may authorise the doing of anything reasonably
necessary to conceal the fact that anything has been done in relation to
the retrieval of a surveillance device or enhancement equipment under
the warrant.
30 Revocation of retrieval warrant
(1) A retrieval warrant may be revoked at any time before the expiration of
the period of validity specified in it by:
(a) an eligible Judge, if an eligible Judge issued the warrant, or
(b) an eligible Magistrate, if an eligible Magistrate issued the
warrant.
(2) An eligible Judge or eligible Magistrate may revoke a retrieval warrant
on application by or on behalf of a law enforcement officer.
(3) An eligible Judge or eligible Magistrate who revokes a warrant must
give notice of the revocation to the chief officer of the law enforcement
agency of which the law enforcement officer to whom the warrant was
issued is a member.
(4) If the eligible Judge or eligible Magistrate revokes the warrant on the
application of a law enforcement officer, the Judge or Magistrate is
taken to have notified the chief officer under subsection (3) when the
Judge or Magistrate revokes the warrant.
(5) If the chief officer of a law enforcement agency is satisfied that the
grounds for issue of a retrieval warrant to a law enforcement officer of
the agency no longer exist, the chief officer must cause an application
to be made for the revocation of the warrant under this section.
(6) If the law enforcement officer to whom a retrieval warrant has been
issued, or who is primarily responsible for executing a retrieval warrant,
believes that the grounds for issue of the warrant no longer exist, he or
she must inform the chief officer of the law enforcement agency
immediately.
Page 27
Clause 31 Surveillance Devices Bill 2007
Part 3 Warrants
Division 4 Emergency authorisations
31 Emergency use of surveillance devices--threat of serious personal
violence or substantial property damage
(1) A law enforcement officer may use a surveillance device without a
surveillance device warrant if the law enforcement officer on
reasonable grounds suspects or believes that:
(a) an imminent threat of serious violence to a person or substantial
damage to property or that a serious narcotics offence will be
committed exists, and
(b) the use of a surveillance device is immediately necessary for the
purpose of dealing with that threat, and
(c) the circumstances are so serious and the matter is of such urgency
that the use of a surveillance device is warranted, and
(d) it is not practicable in the circumstances to apply for a
surveillance device warrant.
(2) A law enforcement officer authorised to use a surveillance device by
subsection (1) may do anything that the officer could be authorised to
do by a surveillance device warrant.
(3) A law enforcement officer is not authorised by this section to use a
surveillance device outside this jurisdiction.
32 Emergency authorisation--continued use of authorised surveillance
device in participating jurisdiction
(1) A law enforcement officer may apply to a senior officer of the agency
of which the officer is a member for an emergency authorisation for the
use of a surveillance device if:
(a) use of a surveillance device in this jurisdiction is authorised by
section 31 in connection with an investigation into a relevant
offence, and
(b) the law enforcement officer on reasonable grounds suspects or
believes that:
(i) the investigation in relation to which the surveillance
device is authorised in this jurisdiction is likely to extend
to a participating jurisdiction, and
(ii) the use of the surveillance device in a participating
jurisdiction is immediately necessary to prevent the loss of
any evidence, and
(iii) the circumstances are so serious and the matter is of such
urgency that the use of the surveillance device in the
participating jurisdiction is warranted, and
Page 28
Surveillance Devices Bill 2007 Clause 33
Warrants Part 3
(iv) it is not practicable in the circumstances to apply for a
surveillance device warrant.
(2) An application may be made orally, in writing or by telephone, fax,
e-mail or any other means of communication.
(3) A senior officer may give an emergency authorisation for the use of a
surveillance device on an application under subsection (1) if satisfied
that:
(a) use of the surveillance device in this jurisdiction is authorised
under a law of this jurisdiction, in connection with an
investigation into a relevant offence, and
(b) there are reasonable grounds for the suspicion or belief founding
the application.
(4) An emergency authorisation given under this section may authorise the
law enforcement officer to whom it is given to do anything that a
surveillance device warrant may authorise the officer to do.
33 Application for approval after use of surveillance device without warrant
or under emergency authorisation
(1) Within 2 business days after a law enforcement officer uses a
surveillance device without a warrant in an emergency under section 31,
the law enforcement officer (or another person on his or her behalf)
must apply to an eligible Judge for approval of the exercise of powers
under that section.
(2) Within 2 business days after giving an emergency authorisation under
section 32, a senior officer (or another person on his or her behalf) must
apply to an eligible Judge for approval of the exercise of powers under
the emergency authorisation.
(3) An application must specify:
(a) the name of the applicant, and
(b) the kind of surveillance device sought to be approved and, if a
warrant is sought, the nature and duration of the warrant,
and must be supported by an affidavit setting out the grounds on which
the approval (and warrant, if any) is sought.
(4) The eligible Judge may refuse to consider the application until the
applicant gives the eligible Judge all the information the eligible Judge
requires about the application in the way the eligible Judge requires.
(5) An application is not to be heard in open court.
Page 29
Clause 34 Surveillance Devices Bill 2007
Part 3 Warrants
34 Consideration of application
(1) Before deciding an application for approval in respect of the use of a
surveillance device without a warrant in an emergency under section 31,
the eligible Judge must, in particular, and being mindful of the intrusive
nature of using a surveillance device, consider the following:
(a) the nature of the threat of serious violence to a person or
substantial damage to property or of the commission of a serious
narcotics offence,
(b) the extent to which issuing a surveillance device warrant would
have helped reduce or avoid the threat,
(c) the extent to which law enforcement officers could have used
alternative methods of investigation to help reduce or avoid the
threat,
(d) how much the use of alternative methods of investigation could
have helped reduce or avoid the threat,
(e) how much the use of alternative methods of investigation would
have prejudiced the safety of the person or property because of
delay or for another reason,
(f) whether or not it was practicable in the circumstances to apply for
a surveillance device warrant.
(2) Before deciding an application for approval in respect of an emergency
authorisation given under section 32, the eligible Judge must, in
particular, and being mindful of the intrusive nature of using a
surveillance device, consider the following:
(a) the nature of the risk of the loss of evidence,
(b) the extent to which issuing a surveillance device warrant would
have helped reduce or avoid the risk,
(c) the terms of the existing authorisation for the use of the
surveillance device,
(d) whether or not it was practicable in the circumstances to apply for
a surveillance device warrant.
35 Eligible Judge may approve emergency use of powers
(1) After considering an application for approval in respect of the use of a
surveillance device without a warrant in an emergency under section 31,
the eligible Judge may approve the application if satisfied that there are
reasonable grounds to suspect or believe that:
(a) there was a threat of serious violence to a person or substantial
damage to property or of the commission of a serious narcotics
offence, and
Page 30
Surveillance Devices Bill 2007 Clause 36
Warrants Part 3
(b) using a surveillance device may have helped reduce the threat,
and
(c) it was not practicable in the circumstances to apply for a
surveillance device warrant.
(2) After considering an application for approval in respect of an
emergency authorisation given under section 32, the eligible Judge may
approve the application if satisfied that:
(a) use of the surveillance device in this jurisdiction was authorised
under a law of this jurisdiction, in connection with an
investigation into a relevant offence, and
(b) there were reasonable grounds to suspect or believe that:
(i) there was a risk of loss of evidence, and
(ii) using the surveillance device in a participating jurisdiction
may have helped reduce the risk, and
(c) it was not practicable in the circumstances to apply for a
surveillance device warrant.
(3) If the eligible Judge approves an application under this section, the
Judge may issue a surveillance device warrant for the continued use of
the surveillance device as if the application were an application for a
surveillance device warrant under Division 2.
(4) If the eligible Judge does not approve an application under this section,
the Judge may:
(a) order that the use of the surveillance device cease, and
(b) authorise, subject to any conditions the eligible Judge thinks fit,
the retrieval of the surveillance device.
(5) In any case, the eligible Judge may order that any information obtained
from or relating to the exercise of powers without a warrant or under the
emergency authorisation, or any record of that information, be dealt
with in the way specified in the order.
36 Admissibility of evidence
If the exercise of powers without a warrant in an emergency or under an
emergency authorisation is approved under section 35, evidence
obtained because of the exercise of those powers is not inadmissible in
any proceeding merely because the evidence was obtained before the
approval.
Page 31
Clause 37 Surveillance Devices Bill 2007
Part 4 Recognition of corresponding warrants and authorisations
Part 4 Recognition of corresponding warrants and
authorisations
37 Corresponding warrants
A corresponding warrant may be executed in this jurisdiction in
accordance with its terms as if it were a surveillance device warrant or
retrieval warrant (as the case requires) issued under Part 3.
38 Corresponding emergency authorisation
(1) A corresponding emergency authorisation authorises the use of a
surveillance device in accordance with its terms in this jurisdiction as if
it were an emergency authorisation given under Part 3.
(2) Subsection (1) does not apply at any time after a Judge orders, under a
provision of a corresponding law that corresponds to section 35 (4), that
the use of a surveillance device under the corresponding emergency
authorisation cease.
Page 32
Surveillance Devices Bill 2007 Clause 39
Compliance and monitoring Part 5
Part 5 Compliance and monitoring
Division 1 Restrictions on use, communication and
publication of information
39 What is protected information?
In this Division:
protected information means:
(a) any information obtained from the use of a surveillance device
under a warrant, emergency authorisation, corresponding warrant
or corresponding emergency authorisation, or
(b) any information relating to:
(i) an application for, issue of, existence or expiry of, a
warrant, emergency authorisation, corresponding warrant
or corresponding emergency authorisation, or
(ii) an application for approval of powers exercised in an
emergency without a warrant under section 31 or under an
emergency authorisation, or
(iii) an application under a corresponding law for approval of
powers exercised under a corresponding emergency
authorisation, or
(c) any information obtained from use of a surveillance device as
referred to in section 7 (4).
40 Prohibition on use, communication or publication of protected
information
(1) A person is guilty of an offence if:
(a) the person intentionally, knowingly or recklessly uses,
communicates or publishes any information, and
(b) the person knows that, or is reckless as to whether, the
information is protected information, and
(c) the person knows that, or is reckless as to whether, the use,
communication or publication of the information is prohibited by
this section.
Maximum penalty: Imprisonment for 2 years.
Note. Under section 16 of the Crimes (Sentencing Procedure) Act 1999, a court
may impose a fine on a body corporate that commits this offence or an offence
under subsection (2).
(2) A person is guilty of an offence against this subsection if the person
commits an offence against subsection (1) in circumstances in which the
person:
Page 33
Clause 40 Surveillance Devices Bill 2007
Part 5 Compliance and monitoring
(a) intends to endanger the health or safety of any person or prejudice
the effective conduct of an investigation into a relevant offence,
or
(b) knows that, or is reckless as to whether, the disclosure of the
information:
(i) endangers or will endanger the health or safety of any
person, or
(ii) prejudices or will prejudice the effective conduct of an
investigation into a relevant offence.
Maximum penalty: Imprisonment for 7 years.
(3) Subsections (1) and (2) do not apply to:
(a) the use, communication or publication of:
(i) any information that has been disclosed in proceedings in
open court, or
(ii) any information that has entered the public domain, or
(b) the use or communication of protected information by a person
who believes on reasonable grounds that the use or
communication is necessary to help prevent or reduce the threat
of serious violence to a person, substantial damage to property or
the commission of a serious narcotics offence, or
(c) the communication to the Director-General (within the meaning
of the Australian Security Intelligence Organisation Act 1979 of
the Commonwealth) of protected information that relates or
appears to relate to activities prejudicial to security (within the
meaning of that Act), or
(d) the use or communication of information referred to in paragraph
(c) by an officer of the Australian Security Intelligence
Organisation in the performance of his or her official functions,
or
(e) the use or communication of information to a foreign country or
an appropriate authority of a foreign country in accordance with
the Mutual Assistance in Criminal Matters Act 1987 of the
Commonwealth.
(4) Protected information may be used, published or communicated if it is
necessary to do so for any of the following purposes:
(a) the investigation of a relevant offence within the meaning of this
Act or a relevant offence within the meaning of a corresponding
law,
(b) the making of a decision whether or not to bring a prosecution for
a relevant offence within the meaning of this Act or a relevant
offence within the meaning of a corresponding law,
Page 34
Surveillance Devices Bill 2007 Clause 40
Compliance and monitoring Part 5
(c) a relevant proceeding within the meaning of this Act or a relevant
proceeding within the meaning of a corresponding law,
(d) an investigation of a complaint against, or the conduct of, a public
officer within the meaning of this Act or a public officer within
the meaning of a corresponding law and the oversight of such an
investigation,
(e) the making of a decision in relation to the appointment,
re-appointment, term of appointment, promotion or retirement of
a person referred to in paragraph (d) or the making of any
managerial decision with respect to such a person,
(f) the keeping of records and making of reports by:
(i) a law enforcement agency in accordance with the
obligations imposed by Division 2, or
(ii) a law enforcement agency (within the meaning of a
corresponding law) in accordance with the obligations
imposed by provisions of the corresponding law that
correspond to Division 2,
(g) an inspection by the Ombudsman under section 48 or an
inspection under a provision of a corresponding law that
corresponds to section 48,
(h) an inquiry or investigation under the Privacy and Personal
Information Protection Act 1998 or of the law of a participating
jurisdiction or of the Commonwealth concerning the privacy of
personal information.
(5) Without limiting subsection (4), protected information may be
communicated or published by a law enforcement officer to any person
with the consent of the chief officer of the law enforcement agency of
which the officer is a member.
(6) A chief officer may consent to the communication of protected
information under subsection (5) only if satisfied that it is necessary or
desirable in the public interest for the protected information to be
communicated to the person concerned and that the public interest in
communicating the information outweighs any intrusion on the privacy
of the person to whom it relates or of any other person who may be
affected by its communication.
(7) In deciding whether to give consent the chief officer must take into
consideration the manner in which the protected information will be
dealt with after it is communicated to the person concerned.
(8) Subsections (3) (c) and (d) and (4) (a), (b) and (c) do not authorise the
use, communication or publication of protected information in respect
of the use of a surveillance device in an emergency without a warrant or
Page 35
Clause 41 Surveillance Devices Bill 2007
Part 5 Compliance and monitoring
in respect of an emergency authorisation or corresponding emergency
authorisation unless the use of powers without the warrant or under that
authorisation has been approved under section 35 or the provisions of a
corresponding law that correspond to section 35.
(9) A reference in subsection (4) to a relevant offence is a reference to any
relevant offence, whether or not it is the offence in respect of which the
relevant surveillance device was used or the warrant or emergency
authorisation was issued or given.
41 Dealing with records obtained by use of surveillance devices
(1) The chief executive officer of a law enforcement agency:
(a) must ensure that every record or report obtained by the use of a
surveillance device by a law enforcement officer of the agency
under a warrant, emergency authorisation, corresponding warrant
or corresponding emergency authorisation or without a warrant
in an emergency, is kept, in accordance with guidelines
established by the chief executive officer, in a secure place that is
not accessible to people who are not entitled to deal with the
record or report, and
(b) must destroy or cause to be destroyed any record or report
referred to in paragraph (a) if he or she is satisfied that it is not
likely to be required in connection with a purpose referred to in
section 40 (4) or (5).
(2) Subsection (1) does not apply to a record or report that is received into
evidence in legal proceedings or disciplinary proceedings.
42 Protection of surveillance device technologies and methods
(1) In any proceeding, a person may object to the disclosure of information
on the ground that the information, if disclosed, could reasonably be
expected to reveal details of surveillance device technology or methods
of installation, use or retrieval of surveillance devices.
(2) If the person conducting or presiding over the proceeding is satisfied
that the ground of objection is made out, he or she may order that the
person who has the information not be required to disclose it in the
proceeding.
(3) In determining whether or not to make an order under subsection (2),
the person conducting or presiding over the proceeding must take into
account whether disclosure of the information:
(a) is necessary for the fair trial of the defendant or to ensure
procedural fairness in any disciplinary or civil proceeding, or
(b) is in the public interest.
Page 36
Surveillance Devices Bill 2007 Clause 43
Compliance and monitoring Part 5
(4) Subsection (2) does not affect a provision of another law under which a
law enforcement officer cannot be compelled to disclose information or
make statements in relation to the information.
(5) If the person conducting or presiding over a proceeding is satisfied that
publication of any information disclosed in the proceeding could
reasonably be expected to reveal details of surveillance device
technology or methods of installation, use or retrieval of surveillance
devices, the person must make any orders prohibiting or restricting
publication of the information that he or she considers necessary to
ensure that those details are not revealed.
(6) Subsection (5) does not apply to the extent that the person conducting
or presiding over the proceeding considers that the interests of justice
require otherwise.
(7) In this section:
proceeding includes:
(a) a proceeding before a court, tribunal, Royal Commission or
special commission of inquiry, or
(b) a proceeding before any other body or authority having power by
law to require the production of documents or the answering of
questions.
43 Protected information in the custody of a court
A person is not entitled to search any protected information in the
custody of a court unless the court otherwise orders in the interests of
justice.
Division 2 Reporting and record-keeping
44 Reports to eligible Judge or eligible Magistrate and Attorney General
(1) A person to whom a surveillance device warrant is issued must, within
the time specified in the warrant, furnish a report, in writing, to an
eligible Judge (if the warrant was issued by an eligible Judge) or eligible
Magistrate (if the warrant was issued by an eligible Magistrate) and to
the Attorney General:
(a) stating whether or not a surveillance device was used pursuant to
the warrant, and
(b) specifying the type of surveillance device (if any) used, and
(c) specifying the name, if known, of any person whose private
conversation was recorded or listened to, or whose activity was
recorded, by the use of the device, and
(d) specifying the period during which the device was used, and
Page 37
Clause 44 Surveillance Devices Bill 2007
Part 5 Compliance and monitoring
(e) containing particulars of any premises or vehicle on or in which
the device was installed or any place at which the device was
used, and
(f) containing particulars of the general use made or to be made of
any evidence or information obtained by the use of the device,
and
(g) containing particulars of any previous use of a surveillance
device in connection with the relevant offence in respect of which
the warrant was issued.
(2) A person to whom an approval is given in respect of the use of a
surveillance device in an emergency without a warrant must, within the
time specified by the eligible Judge who gave the approval, furnish a
report, in writing, to an eligible Judge and to the Attorney General:
(a) specifying the type of surveillance device used, and
(b) specifying the name, if known, of any person whose private
conversation was recorded or listened to, or whose activity was
recorded, by the use of the device, and
(c) specifying the period during which the device was used, and
(d) containing particulars of any premises or vehicle on or in which
the device was installed or any place at which the device was
used, and
(e) containing particulars of the general use made or to be made of
any evidence or information obtained by the use of the device,
and
(f) containing particulars of any previous use of a surveillance
device in connection with the relevant offence in respect of which
the approval was given.
(3) If the person to whom a surveillance device warrant is issued or to
whom approval has been given in respect of use of a surveillance device
in an emergency without a warrant has died, is no longer a law
enforcement officer, is absent or is otherwise unavailable to furnish a
report under subsection (1) or (2), it may be furnished by another person
on his or her behalf.
(4) If a report is given to an eligible Judge or eligible Magistrate under
subsection (1) or (2), the eligible Judge or eligible Magistrate may direct
that any record of evidence or information obtained by the use of the
surveillance device to which the report relates be brought into the Court,
and a person to whom any such direction is given must comply with the
direction.
Page 38
Surveillance Devices Bill 2007 Clause 45
Compliance and monitoring Part 5
(5) A record brought into the Court under subsection (4) is to be kept in the
custody of the Court and may, by order of the Court, be made available
to any person.
(6) A person whose application is granted under section 25 must, within the
time specified for the purpose by the eligible Judge or eligible
Magistrate granting the application, furnish a report, in writing, to an
eligible Judge or eligible Magistrate and to the Attorney General:
(a) stating whether or not the surveillance device concerned was
retrieved during the currency of the warrant, and
(b) if the surveillance device was not so retrieved, giving the reasons
why it was not retrieved.
Maximum penalty (subsections (1), (2) and (6)): 20 penalty units or
imprisonment for a term of 12 months, or both.
45 Annual reports
(1) The Attorney General is to prepare a report as soon as practicable after
the end of each financial year, and in any event within 3 months after
the end of the financial year, that includes the following information in
respect of the financial year concerned:
(a) the number of applications for warrants by, and the number of
warrants issued to, law enforcement officers during that year,
(b) the number of applications for emergency authorisations by, and
the number of emergency authorisations given to, law
enforcement officers during that year,
(c) any other information relating to the use of surveillance devices
and the administration of this Act that the Attorney General
considers appropriate.
(2) The information referred to in subsection (1) (a) and (b) must be
presented in such a way as to identify the number of warrants issued and
emergency authorisations given in respect of each different kind of
surveillance device.
(3) The Attorney General may require the chief officer of a law
enforcement agency to furnish such information relating to the use of
surveillance devices by law enforcement officers of the agency as is
necessary to enable the Attorney General to prepare the report.
(4) The Attorney General must lay (or cause to be laid) a copy of each
report under this section before both Houses of Parliament within 15
sitting days after the report is prepared.
(5) If a House of Parliament is not sitting when the Attorney General seeks
to lay a report before it, the Attorney General is to present a copy of the
report to the Clerk of the House of Parliament.
Page 39
Clause 46 Surveillance Devices Bill 2007
Part 5 Compliance and monitoring
(6) The report:
(a) is, on presentation and for all purposes, taken to have been laid
before the House, and
(b) may be printed by authority of the Clerk of the House, and
(c) if so printed, is taken to be a document published by or under the
authority of the House, and
(d) is to be recorded:
(i) in the case of the Legislative Council--in the Minutes of
the Proceedings of the Legislative Council, and
(ii) in the case of the Legislative Assembly--in the Votes and
Proceedings of the Legislative Assembly,
on the first sitting day of the House after receipt of the copy of the
report by the Clerk.
46 Keeping documents connected with warrants and emergency
authorisations
The chief officer of a law enforcement agency must cause to be kept
records containing such information as is determined by the Attorney
General in consultation with the chief officer with respect to warrants
and emergency authorisations sought and obtained by, and the use of
surveillance devices and information obtained from use of surveillance
devices by, the agency or law enforcement officers of the agency.
47 Register of warrants and emergency authorisations
(1) The chief officer of a law enforcement agency must cause a register of
warrants and emergency authorisations to be kept.
(2) The register is to specify, for each warrant issued to a law enforcement
officer of the agency:
(a) the date of issue of the warrant, and
(b) the name of the eligible Judge or eligible Magistrate who issued
the warrant, and
(c) the name of the law enforcement officer named in the warrant as
the person primarily responsible for executing it, and
(d) the relevant offence in relation to which the warrant is issued, and
(e) the period during which the warrant is in force, and
(f) details of any variation or extension of the warrant.
(3) The register is to specify, for each emergency authorisation given to a
law enforcement officer of the agency:
(a) the date the emergency authorisation was given, and
Page 40
Surveillance Devices Bill 2007 Clause 48
Compliance and monitoring Part 5
(b) the name of the senior officer who gave the emergency
authorisation, and
(c) the name of the law enforcement officer to whom the emergency
authorisation was given, and
(d) the relevant offence in relation to which the emergency
authorisation was given, and
(e) the date on which the application for approval of powers
exercised under the emergency authorisation was made.
Division 3 Inspections
48 Inspection of records by Ombudsman
(1) The Ombudsman must, from time to time, inspect the records of each
law enforcement agency (other than the Australian Crime Commission)
to determine the extent of compliance with this Act by the agency and
law enforcement officers of the agency.
Note. Under section 55 of the Surveillance Devices Act 2004 of the
Commonwealth, the Commonwealth Ombudsman is required to inspect the
records of the Australian Crime Commission to determine the extent of the
Commission'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.
(2) For the purpose of an inspection under this section, the Ombudsman:
(a) after notifying the chief officer of the agency, may 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 that are relevant to the inspection, and
(c) may require a member of staff of the agency to give the
Ombudsman any information that the Ombudsman considers
necessary, being information that is in the member's possession,
or to which the member has access, and that is relevant to the
inspection.
(3) The chief officer must ensure that members of staff of the agency give
the Ombudsman any assistance that the Ombudsman reasonably
requires to enable the Ombudsman to perform the Ombudsman's
functions under this section.
49 Report on inspection
(1) The Ombudsman must make a written report to the Minister at
6-monthly intervals on the results of an inspection under section 48.
Page 41
Clause 50 Surveillance Devices Bill 2007
Part 5 Compliance and monitoring
(2) The Minister must, within 15 days after the receipt of the report, lay the
report (or cause it to be laid) before both Houses of Parliament.
(3) If a House of Parliament is not sitting when the Minister seeks to lay a
report before it, the Minister may present a copy of the report to the
Clerk of the House of Parliament.
(4) The report:
(a) is, on presentation and for all purposes, taken to have been laid
before the House, and
(b) may be printed by authority of the Clerk of the House, and
(c) if so printed, is taken to be a document published by or under the
authority of the House, and
(d) is to be recorded:
(i) in the case of the Legislative Council--in the Minutes of
the Proceedings of the Legislative Council, or
(ii) in the case of the Legislative Assembly--in the Votes and
Proceedings of the Legislative Assembly,
on the first sitting day of the House after receipt of the report by
the Clerk.
Division 4 General
50 Evidentiary certificates
(1) A senior officer of a law enforcement agency, or a person assisting him
or her, may issue a written certificate signed by the officer or person
setting out the facts he or she considers relevant with respect to:
(a) anything done by a law enforcement officer of the agency, or by
a person assisting or providing technical expertise to him or her,
in connection with the execution of a warrant or in accordance
with an emergency authorisation, or
(b) anything done by a law enforcement officer of the agency in
connection with:
(i) the communication by a person to another person of, or
(ii) the making use of, or
(iii) the making of a record of, or
(iv) the custody of a record of,
information obtained by the use of a surveillance device under a
warrant, emergency authorisation, corresponding warrant or
corresponding emergency authorisation.
Page 42
Surveillance Devices Bill 2007 Clause 50
Compliance and monitoring Part 5
(2) A document purporting to be a certificate issued under subsection (1) or
under a provision of a corresponding law that corresponds to subsection
(1) is admissible in evidence in any proceeding.
(3) Subsection (2) does not apply to a certificate to the extent that the
certificate sets out facts with respect to anything done in accordance
with an emergency authorisation or corresponding emergency
authorisation unless the use of powers under the authorisation
concerned has been approved under section 35 (Eligible Judge may
approve emergency use of powers) or under a provision of a
corresponding law that corresponds to section 35.
Page 43
Clause 51 Surveillance Devices Bill 2007
Part 6 Miscellaneous
Part 6 Miscellaneous
51 Particulars of warrants sought under Part 3 to be notified to Attorney
General
(1) A person seeking a warrant under Part 3 (including a warrant under
section 35 (3)) must cause to be served on the Attorney General or an
officer prescribed by the regulations notice of the following particulars:
(a) the relevant offence in respect of which the warrant is sought,
(b) where practicable, the type of surveillance device intended to be
used,
(c) where practicable, the name of any person whose private
conversation or activity is intended to be recorded or listened to
by the use of the surveillance device,
(d) where practicable, the premises or vehicle on or in which the
surveillance device is intended to be installed or the place at
which the surveillance device is intended to be used,
(e) whether any attempt has been made to obtain by alternative
means the evidence or information sought and, if so, the result of
any such attempt,
(f) any other alternative means of obtaining the evidence or
information sought to be obtained,
(g) the period during which the surveillance device is intended to be
used,
(h) the name of the law enforcement officer primarily responsible for
executing the warrant,
(i) details of any previous warrant sought or issued under Part 3 in
connection with the same relevant offence.
(2) A warrant must not be issued under Part 3 (including a warrant under
section 35 (3)) unless the eligible Judge or eligible Magistrate is
satisfied that:
(a) a notice in respect of the warrant has been served in accordance
with this section, and
(b) the Attorney General has had an opportunity to be heard in
relation to the granting of the warrant.
(3) A notice required by this section to be served on a person may be
served:
(a) by delivering it personally to the person, or
(b) by sending it by facsimile transmission to a number specified by
the person (in correspondence or otherwise) as a number to which
facsimile transmissions to that person may be sent.
Page 44
Surveillance Devices Bill 2007 Clause 52
Miscellaneous Part 6
52 Requirement to inform subject of surveillance
(1) Where, under a warrant issued under Part 3, a surveillance device has
been used to record or listen to the private conversation of a person or
to record visually or observe an activity of a person, an eligible Judge
may direct the person to whom the warrant was issued to supply to that
person, within a period specified by the eligible Judge, such information
regarding the warrant and the use of the device as the eligible Judge may
specify.
(2) An eligible Judge must not give a direction under subsection (1) unless
the eligible Judge is satisfied that, having regard to the evidence or
information obtained by the use of the surveillance device and to any
other relevant matter, the use of the surveillance device was not justified
and was an unnecessary interference with the privacy of the person
concerned.
(3) Before giving a direction under subsection (1), the eligible Judge must
give the person to whom the warrant was issued an opportunity to be
heard in relation to the matter.
(4) A person to whom a direction is given under subsection (1) must
comply with the direction.
Maximum penalty: 20 penalty units or imprisonment for a term of 12
months, or both.
53 Use of assumed names or code-names in warrants
(1) An eligible Judge or eligible Magistrate may grant a warrant under this
Act that refers to a person by an assumed name or code-name if the
eligible Judge or eligible Magistrate is satisfied that it is necessary to do
so to protect the safety of the person.
(2) A person may be referred to by an assumed name or code-name in a
notice under section 51 or report under Part 5 if the person who
furnishes the notice or report believes on reasonable grounds that use of
the assumed name is necessary to protect the safety of the person
referred to.
54 Service of documents
(1) A document that is authorised or required by this Act or the regulations
to be served on any person may be served by:
(a) in the case of a natural person:
(i) delivering it to the person personally, or
(ii) sending it by post to the address specified by the person for
the giving or service of documents or, if no such address is
specified, the residential or business address of the person
Page 45
Clause 55 Surveillance Devices Bill 2007
Part 6 Miscellaneous
last known to the person giving or serving the document,
or
(iii) sending it by facsimile transmission to the facsimile
number of the person, or
(b) in the case of a body corporate:
(i) leaving it with a person apparently of or above the age of
16 years at, or by sending it by post to, the head office, a
registered office or a principal office of the body corporate
or to an address specified by the body corporate for the
giving or service of documents, or
(ii) sending it by facsimile transmission to the facsimile
number of the body corporate.
(2) Nothing in this section affects the operation of any provision of any
other law or of the rules of a court authorising a document to be served
on a person in any other manner.
55 Time for instituting proceedings for certain offences
Proceedings for an offence against this Act (other than proceedings that
are to be dealt with on indictment) must be commenced within 2 years
after the date on which the offence is alleged to have been committed.
56 Consent of Attorney General to prosecutions
(1) Proceedings for an offence against this Act or the regulations must not
be instituted without the written consent of the Attorney General.
(2) In proceedings referred to in subsection (1), a consent to institute the
proceedings purporting to have been signed by the Attorney General is
evidence of that consent without proof of the signature of the Attorney
General.
57 Offences by corporations
(1) If a corporation contravenes, whether by act or omission, any provision
of this Act or the regulations, each person who is a director of the
corporation or who is concerned in the management of the corporation
is taken to have contravened the same provision if the person knowingly
authorised or permitted the contravention.
(2) A person may be proceeded against and convicted under a provision
pursuant to subsection (1) whether or not the corporation has been
proceeded against or has been convicted under the provision.
(3) Nothing in this section affects any liability imposed on a corporation for
an offence committed by the corporation against this Act or the
regulations.
Page 46
Surveillance Devices Bill 2007 Clause 58
Miscellaneous Part 6
58 Orders for forfeiture
(1) Where a court has convicted a person of an offence against this Act or
the regulations, it may, in addition to any penalty it may impose, make
either or both of the following orders:
(a) an order that any surveillance device used in the commission of
the offence be forfeited to the State or destroyed,
(b) an order that any record of a private conversation or activity:
(i) to which the offence relates, or
(ii) which was obtained by the use of a surveillance device to
which the offence relates,
be forfeited to the State or destroyed.
(2) Before making an order under subsection (1), the court may require
notice to be given to, and may hear, such persons as the court thinks fit.
(3) Without affecting any other right of appeal, an order under subsection
(1) is appellable in the same manner as if it were, or were part of, a
sentence imposed in respect of the offence.
(4) Where an order is made under subsection (1) that a surveillance device
or record be forfeited to the State or destroyed, any police officer may
seize the surveillance device or record for the purpose of giving effect
to the order.
(5) A surveillance device or record forfeited to the State may be disposed
of in accordance with the directions of the Commissioner of Police.
59 Regulations
(1) The Governor may make regulations, not inconsistent with this Act, for
or with respect to any matter that by this Act is required or permitted to
be prescribed or that is necessary or convenient to be prescribed for
carrying out or giving effect to this Act.
(2) The regulations may exempt, subject to compliance with any conditions
specified in the regulations, from any or all provisions of this Act, as
may be so specified, persons belonging to any class of persons so
specified.
(3) Despite the provisions of section 39 of the Interpretation Act 1987, any
regulation made for the purposes of subsection (2) takes effect on and
from the date of expiry of the period during which either House of
Parliament may, under section 41 of the Interpretation Act 1987
disallow the regulation, whichever date is the later, or on and from a
later date specified in the regulation.
(4) Except as provided by subsection (3), section 39 of the Interpretation
Act 1987 applies to any regulation.
Page 47
Clause 60 Surveillance Devices Bill 2007
Part 6 Miscellaneous
(5) A regulation may create an offence punishable by a penalty not
exceeding 40 penalty units in the case of a corporation or 20 penalty
units in any other case.
60 Savings, transitional and other provisions
Schedule 1 has effect.
61 Amendment of other Acts and regulations
The Acts and regulations specified in Schedule 2 are amended as set out
in that Schedule.
62 Repeal of Listening Devices Act 1984
The Listening Devices Act 1984 is repealed.
63 Review of Act
(1) The Minister is to review this Act to determine whether the policy
objectives of the Act remain valid and whether the terms of the Act
remain appropriate for securing those objectives.
(2) The review is to be undertaken as soon as possible after the period of
5 years from the date of assent to this Act.
(3) A report on the outcome of the review is to be tabled in each House of
Parliament within 12 months after the end of the period of 5 years.
Page 48
Surveillance Devices Bill 2007
Savings, transitional and other provisions Schedule 1
Schedule 1 Savings, transitional and other
provisions
(Section 60)
Part 1 General
1 Regulations
(1) The regulations may contain provisions of a savings or transitional
nature consequent on the enactment of the following Acts:
this Act
(2) Any such provision may, if the regulations so provide, take effect from
the date of assent to the Act concerned or a later date.
(3) To the extent to which any such provision takes effect from a date that
is earlier than the date of its publication in the Gazette, the provision
does not operate so as:
(a) to affect, in a manner prejudicial to any person (other than the
State or an authority of the State), the rights of that person
existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State or an
authority of the State) in respect of anything done or omitted to
be done before the date of its publication.
Part 2 Provisions consequent on enactment of this
Act
2 Definition
In this Part:
repealed Act means the Listening Devices Act 1984.
3 Warrants authorising use of listening devices under repealed Act
(1) A warrant in force under Part 4 of the repealed Act immediately before
the repeal of section 16 of that Act continues in force on and after that
repeal in accordance with its terms as if it were a surveillance device
warrant issued under this Act.
(2) Section 16A (Retrieval of listening device after expiry of warrant) of the
repealed Act applies to and in respect of a warrant referred to in
subclause (1) as if it had not been repealed.
Page 49
Surveillance Devices Bill 2007
Schedule 1 Savings, transitional and other provisions
4 Pending applications for warrants authorising use of listening devices
under repealed Act
(1) An application for a warrant under Part 4 of the repealed Act made, but
not determined, immediately before the repeal of section 16 of that Act
is to continue to be dealt with under the repealed Act as if that Act had
not been repealed.
(2) A warrant issued under subclause (1) has effect in accordance with its
terms as if it were a surveillance device warrant issued under this Act.
(3) Section 16A (Retrieval of listening device after expiry of warrant) of the
repealed Act applies to and in respect of a warrant referred to in
subclause (1) as if it had not been repealed.
5 Warrants and authorities under this Act
A warrant may be issued, or emergency authorisation given, under this
Act in relation to a relevant offence that is alleged to have been
committed before the commencement of this clause.
6 Use of records
Part 5 of this Act does not apply to information obtained, or a record
made, by the use before the commencement of this clause of a listening
device under a warrant or authority issued under the repealed Act.
Page 50
Surveillance Devices Bill 2007
Amendment of Acts and regulations Schedule 2
Schedule 2 Amendment of Acts and regulations
(Section 61)
2.1 Commercial Agents and Private Inquiry Agents Act 2004
No 70
Section 4 Definitions
Omit "Listening Devices Act 1984" from section 4 (1).
Insert instead "Surveillance Devices Act 2007".
2.2 Criminal Procedure Act 1986 No 209
[1] Section 268 Maximum penalties for Table 2 offences
Insert after section 268 (2) (k):
(l) for an offence under Part 2 or 5 (other than section 40 (2))
of the Surveillance Devices Act 2007--in the case of an
individual, imprisonment for 2 years, or a fine of 100
penalty units (or both), or in the case of a corporation, 200
penalty units.
[2] Schedule 1 Indictable offences triable summarily
Insert after Part 9 of Table 2:
Part 10 Offences relating to surveillance devices
19 Surveillance Devices Act 2007
An offence under Part 2 or 5 (other than section 40 (2)) of the
Surveillance Devices Act 2007.
2.3 Electricity (Consumer Safety) Regulation 2006
Clause 35A
Insert after clause 35:
35A Exclusion from application of Part
This Part does not apply to or in respect of electrical installation
work if it is carried out by a law enforcement officer (within the
meaning of the Surveillance Devices Act 2007 that is authorised
by a surveillance device warrant as referred to in section 21 (3)
(g) of that Act.
Page 51
Surveillance Devices Bill 2007
Schedule 2 Amendment of Acts and regulations
2.4 Independent Commission Against Corruption Act 1988
No 35
Section 19 Incidental powers
Omit "Listening Devices Act 1984".
Insert instead "Surveillance Devices Act 2007".
2.5 Law Enforcement (Powers and Responsibilities) Act 2002
No 103
[1] Section 108F Operation of Surveillance Devices Act 2007
Omit "Listening Devices Act 1984".
Insert instead "Surveillance Devices Act 2007".
[2] Schedule 1 Acts not affected by this Act
Omit "Listening Devices Act 1984 No 69".
[3] Schedule 1
Insert in alphabetical order:
Surveillance Devices Act 2007
2.6 Police Integrity Commission Act 1996 No 28
Section 50 Surveillance devices
Omit "Listening Devices Act 1984".
Insert instead "Surveillance Devices Act 2007".
2.7 Royal Commission (Police Service) Act 1994 No 60
Section 25 Surveillance devices
Omit "Listening Devices Act 1984".
Insert instead "Surveillance Devices Act 2007".
Page 52
Surveillance Devices Bill 2007
Amendment of Acts and regulations Schedule 2
2.8 State Records Regulation 2005
Schedule 2 Provisions excepted from operation of section 21
Omit "Listening Devices Act 1984, sections 22 (Destruction of irrelevant
records made by the use of a listening device) and 30 (Orders for forfeiture)".
Insert instead "Surveillance Devices Act 2007, section 41 (Dealing with
records obtained by use of surveillance devices) and section 58 (Orders for
forfeiture)".
2.9 Workplace Surveillance Act 2005 No 47
Section 3 Definitions
Omit the note to the definition of surveillance.
Insert instead:
Note. This Act does not apply to surveillance by means of a listening
device. See section 4 (3) of the Surveillance Devices Act 2007. Camera
surveillance that is regulated by this Act will also be regulated by the
Surveillance Devices Act 2007 if the camera is used to record a private
conversation.
Page 53
[Index] [Search] [Download] [Related Items] [Help]