2010 THE LEGISLATIVE ASSEMBLY FOR THE AUSTRALIAN CAPITAL TERRITORY (As presented) (Attorney-General) Crimes (Surveillance Devices) Bill 2010 Contents Page Part 1 Preliminary 1 Name of Act 2 2 Commencement 2 3 Dictionary 2 4 Notes 3 5 Offences against Act--application of Criminal Code etc 3 6 Purposes of Act 3 7 Relationship to other laws and matters 4 8 Investigation taken to be conducted in ACT 5 J2009-912 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Page Part 2 Warrants Division 2.1 Introduction 9 Kinds of warrant 6 10 Who may issue warrants? 6 Division 2.2 Surveillance device warrants 11 Surveillance device warrant--application 6 12 Surveillance device warrant--remote application 8 13 Surveillance device warrant--deciding the application 8 14 What must a surveillance device warrant contain? 9 15 What a surveillance device warrant authorises 11 16 Extension and amendment of surveillance device warrant 13 17 Revocation of surveillance device warrant 14 18 Discontinuance of use of surveillance device under warrant 15 Division 2.3 Retrieval warrants 19 Retrieval warrant--application 16 20 Retrieval warrant--remote application 17 21 Retrieval warrant--deciding the application 17 22 What must a retrieval warrant contain? 18 23 What a retrieval warrant authorises 19 24 Revocation of retrieval warrant 20 Part 3 Emergency authorisations 25 Emergency authorisation--risk of serious personal violence or substantial property damage 21 26 Emergency authorisation--continued use of authorised surveillance device in participating jurisdiction 22 27 Application for approval after use of surveillance device under emergency authorisation 23 28 Consideration of application 24 29 Judge may approve emergency use of powers 25 30 Admissibility of evidence 26 contents 2 Crimes (Surveillance Devices) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Page Part 4 Recognition of corresponding warrants and authorisations 31 Corresponding warrants 27 32 Corresponding emergency authorisations 27 Part 5 Compliance and monitoring Division 5.1 Restrictions on use, communication and publication of information 33 What is protected information?--div 5.1 28 34 Prohibition on communication or publication of protected information 28 35 Dealing with records obtained by use of surveillance devices 33 36 Protection of surveillance device technologies and methods 33 37 Protected information in the custody of a court 34 Division 5.2 Reporting and record-keeping 38 Annual reports 35 39 Keeping documents connected with warrants and emergency authorisations 36 40 Other records to be kept 37 41 Register of warrants and emergency authorisations 39 Division 5.3 Inspections 42 Inspection of records by ombudsman 40 Division 5.4 General 43 Evidentiary certificates 41 Part 6 Miscellaneous 44 Delegation 43 45 Regulation-making power 43 Dictionary 44 Crimes (Surveillance Devices) Bill 2010 contents 3 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] THE LEGISLATIVE ASSEMBLY FOR THE AUSTRALIAN CAPITAL TERRITORY (As presented) (Attorney-General) Crimes (Surveillance Devices) Bill 2010 A Bill for An Act to provide for the authorisation of the installation, use, maintenance and retrieval of surveillance devices for law enforcement purposes The Legislative Assembly for the Australian Capital Territory enacts as follows: J2009-912 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 1 1 Part 1 Preliminary 2 1 Name of Act 3 This Act is the Crimes (Surveillance Devices) Act 2010. 4 2 Commencement 5 This Act commences on a day fixed by the Minister by written 6 notice. 7 Note 1 The naming and commencement provisions automatically commence on 8 the notification day (see Legislation Act, s 75 (1)). 9 Note 2 A single day or time may be fixed, or different days or times may be 10 fixed, for the commencement of different provisions (see Legislation 11 Act, s 77 (1)). 12 Note 3 If a provision has not commenced within 6 months beginning on the 13 notification day, it automatically commences on the first day after that 14 period (see Legislation Act, s 79). 15 3 Dictionary 16 The dictionary at the end of this Act is part of this Act. 17 Note 1 The dictionary at the end of this Act defines certain terms used in this 18 Act, and includes references (signpost definitions) to other terms 19 defined elsewhere in this Act. 20 For example, the signpost definition `protected information, for 21 division 5.1--see section 33.' means that the term `protected 22 information' is defined in that section for that division. 23 Note 2 A definition in the dictionary (including a signpost definition) applies to 24 the entire Act unless the definition, or another provision of the Act, 25 provides otherwise or the contrary intention otherwise appears (see 26 Legislation Act, s 155 and s 156 (1)). page 2 Crimes (Surveillance Devices) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 4 1 4 Notes 2 A note included in this Act is explanatory and is not part of this Act. 3 Note See the Legislation Act, s 127 (1), (4) and (5) for the legal status of 4 notes. 5 5 Offences against Act--application of Criminal Code etc 6 Other legislation applies in relation to offences against this Act. 7 Note 1 Criminal Code 8 The Criminal Code, ch 2 applies to all offences against this Act (see 9 Code, pt 2.1). 10 The chapter sets out the general principles of criminal responsibility 11 (including burdens of proof and general defences), and defines terms 12 used for offences to which the Code applies (eg conduct, intention, 13 recklessness and strict liability). 14 Note 2 Penalty units 15 The Legislation Act, s 133 deals with the meaning of offence penalties 16 that are expressed in penalty units. 17 6 Purposes of Act 18 The main purposes of this Act are-- 19 (a) to establish procedures for law enforcement officers to obtain 20 warrants or emergency authorisations for the installation, use, 21 maintenance and retrieval of surveillance devices in criminal 22 investigations, including investigations extending beyond the 23 ACT; and 24 (b) to recognise warrants and emergency authorisations issued in 25 other jurisdictions; and 26 (c) to restrict the use, communication and publication of 27 information obtained through the use of surveillance devices or 28 otherwise connected with surveillance device operations; and Crimes (Surveillance Devices) Bill 2010 page 3 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 7 1 (d) to impose requirements for the secure storage and destruction 2 of records, and the making of reports to the Legislative 3 Assembly, in connection with surveillance device operations. 4 7 Relationship to other laws and matters 5 (1) This Act does not affect any other territory law that prohibits or 6 regulates the use of surveillance devices wholly within the ACT. 7 Note Territory law includes the common law (see Legislation Act, dict, pt 1, 8 def territory law and law, of the Territory). 9 (2) A function conferred in relation to the activities of the Australian 10 Crime Commission under this Act is only conferred for the purpose 11 of the function conferred on the Australian Crime Commission 12 under the Australian Crime Commission (ACT) Act 2003 relating to 13 suspected serious and organised crime as defined in that Act. 14 (3) This Act does not stop a law enforcement officer from using an 15 optical surveillance device in a place where the presence of a police 16 officer is not an offence. 17 (4) This Act does not limit a discretion that a court has-- 18 (a) to admit or exclude evidence in any proceeding; or 19 (b) to stay criminal proceedings in the interests of justice. 20 (5) To remove any doubt, a warrant may be issued, or an emergency 21 authorisation given, in the ACT under this Act for the installation, 22 use, maintenance or retrieval of a surveillance device in the ACT or 23 a participating jurisdiction or both. 24 (6) The following Acts do not apply in relation to activities, documents 25 and records under this Act: 26 (a) the Freedom of Information Act 1989; 27 (b) the Territory Records Act 2002. page 4 Crimes (Surveillance Devices) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 8 1 8 Investigation taken to be conducted in ACT 2 For this Act, an investigation into a relevant offence is taken to be 3 conducted in the ACT, whether or not it is also conducted in another 4 jurisdiction, if a law enforcement officer participates in the 5 investigation. 6 Note This section is intended to cover the situation where a law enforcement 7 officer of the ACT is conducting or participating in an investigation 8 wholly in another jurisdiction for the purposes of an offence against a 9 territory law (eg a law enforcement of the ACT officer is investigating a 10 conspiracy to import drugs into the ACT from NSW and all the 11 evidence of the offence is in NSW). Crimes (Surveillance Devices) Bill 2010 page 5 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Division 2.1 Introduction Section 9 1 Part 2 Warrants 2 Division 2.1 Introduction 3 9 Kinds of warrant 4 (1) The following kinds of warrant may be issued under this part: 5 (a) a surveillance device warrant; 6 (b) a retrieval warrant. 7 (2) A warrant may be issued in relation to 1 or more kinds of 8 surveillance device. 9 10 Who may issue warrants? 10 (1) A judge may issue any warrant under this part. 11 (2) A magistrate may issue-- 12 (a) a surveillance device warrant that authorises the use of a 13 tracking device only; or 14 (b) a retrieval warrant in relation to a tracking device authorised 15 under a warrant mentioned in paragraph (a), if a magistrate 16 issued the original warrant. 17 Division 2.2 Surveillance device warrants 18 11 Surveillance device warrant--application 19 (1) A law enforcement officer (or another person on the officer's 20 behalf) may apply for the issue of a surveillance device warrant if 21 the law enforcement officer suspects on reasonable grounds that-- 22 (a) a relevant offence has been, is being, is about to be or is likely 23 to be committed; and page 6 Crimes (Surveillance Devices) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Surveillance device warrants Division 2.2 Section 11 1 (b) an investigation into that offence is being, will be or is likely to 2 be conducted in the ACT, in the ACT and in 1 or more 3 participating jurisdictions or in 1 or more participating 4 jurisdictions; and 5 (c) the use of a surveillance device in the ACT, in the ACT and in 6 1 or more participating jurisdictions or in 1 or more 7 participating jurisdictions is or will be necessary in the course 8 of that investigation for the purpose of enabling evidence or 9 information to be obtained of the commission of the relevant 10 offence or the identity or location of the offender. 11 (2) The application may be made to-- 12 (a) a judge; or 13 (b) for an application for a surveillance device warrant authorising 14 the use of a tracking device only--a magistrate. 15 (3) An application-- 16 (a) must state-- 17 (i) the name of the applicant; and 18 (ii) the nature and duration of the warrant sought, including 19 the kind of surveillance device sought to be authorised; 20 and 21 (b) subject to this section, must be supported by an affidavit 22 setting out the grounds on which the warrant is sought. 23 (4) An application for a warrant may be made before an affidavit is 24 prepared or sworn if a law enforcement officer believes that-- 25 (a) the immediate use of a surveillance device is necessary for a 26 purpose mentioned in subsection (1) (c); and 27 (b) it is impracticable for an affidavit to be prepared or sworn 28 before an application for a warrant is made. Crimes (Surveillance Devices) Bill 2010 page 7 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Division 2.2 Surveillance device warrants Section 12 1 (5) If subsection (4) applies, the applicant must-- 2 (a) give as much information as the judge or magistrate considers 3 is reasonably practicable in the circumstances; and 4 (b) not later than 72 hours after making the application, send a 5 sworn affidavit to the judge or magistrate, whether or not a 6 warrant has been issued. 7 (6) An application for a warrant must not be heard in open court. 8 12 Surveillance device warrant--remote application 9 (1) If a law enforcement officer believes that it is impracticable for an 10 application for a surveillance device warrant to be made in person, 11 the application may be made under section 11 by telephone, fax, 12 email or any other means of communication. 13 (2) If transmission by fax is available and an affidavit has been 14 prepared, the person applying must send a copy of the affidavit, 15 whether sworn or unsworn, to the judge or magistrate who is to 16 decide the application. 17 13 Surveillance device warrant--deciding the application 18 (1) A judge or magistrate may issue a surveillance device warrant if 19 satisfied that-- 20 (a) there are reasonable grounds for the suspicion or belief 21 founding the application for the warrant; and 22 (b) for an unsworn application--it would have been impracticable 23 for an affidavit to have been prepared or sworn before the 24 application was made; and 25 (c) for a remote application--it would have been impracticable for 26 the application to have been made in person. page 8 Crimes (Surveillance Devices) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Surveillance device warrants Division 2.2 Section 14 1 (2) In deciding whether a surveillance device warrant should be issued, 2 the judge or magistrate must have regard to the following: 3 (a) the nature and gravity of the alleged offence in relation to 4 which the warrant is sought; 5 (b) the extent to which the privacy of any person is likely to be 6 affected; 7 (c) the existence of any alternative means of obtaining the 8 evidence or information sought to be obtained and the extent to 9 which those means may assist or prejudice the investigation; 10 (d) the evidentiary or intelligence value of any information sought 11 to be obtained; 12 (e) any previous warrant sought or issued under this division or a 13 corresponding law (if known) in connection with the same 14 offence. 15 14 What must a surveillance device warrant contain? 16 (1) A surveillance device warrant must-- 17 (a) state that the judge or magistrate is satisfied of the matters 18 mentioned in section 13 (1) and has had regard to the matters 19 mentioned in section 13 (2); and 20 (b) state the following: 21 (i) the name of the applicant; 22 (ii) the alleged offence in relation to which the warrant is 23 issued; 24 (iii) the date the warrant is issued; 25 (iv) the kind of surveillance device authorised to be used; 26 (v) if the warrant authorises the use of a surveillance device 27 on premises--the premises where the use of the 28 surveillance device is authorised; Crimes (Surveillance Devices) Bill 2010 page 9 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Division 2.2 Surveillance device warrants Section 14 1 (vi) if the warrant authorises the use of a surveillance device 2 in or on an object or class of object--the object or class of 3 object in or on which the use of the surveillance device is 4 authorised; 5 (vii) if the warrant authorises the use of a surveillance device 6 in relation to the conversations, activities or geographical 7 location of a person--the name of the person (if known); 8 (viii) the period (not more than 90 days) during which the 9 warrant is in force; 10 (ix) the name of the law enforcement officer primarily 11 responsible for executing the warrant; 12 (x) any conditions subject to which premises may be entered, 13 or a surveillance device may be used, under the warrant. 14 (2) For a warrant mentioned in subsection (1) (b) (vii), if the identity of 15 the person is unknown, the warrant must state that fact. 16 (3) A warrant must be signed by the person issuing it and include the 17 person's name. 18 (4) If the judge or magistrate issues a warrant on a remote application, 19 the judge or magistrate must-- 20 (a) tell the applicant-- 21 (i) the terms of the warrant; and 22 (ii) the date and time the warrant was issued; and 23 (b) enter the terms and date mentioned in paragraph (a) in a 24 register kept by the judge or magistrate for the purpose; and 25 (c) give the applicant a copy of the warrant as soon as practicable. page 10 Crimes (Surveillance Devices) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Surveillance device warrants Division 2.2 Section 15 1 15 What a surveillance device warrant authorises 2 (1) A surveillance device warrant may authorise, as stated in the 3 warrant, 1 or more of the following: 4 (a) the use of a surveillance device on stated premises; 5 (b) the use of a surveillance device in or on a stated object or class 6 of objects; 7 (c) the use of a surveillance device in relation to the conversations, 8 activities or geographical location of a stated person or a 9 person whose identity is unknown. 10 (2) A surveillance device warrant authorises-- 11 (a) for a warrant mentioned in subsection (1) (a)-- 12 (i) the installation, use and maintenance of a surveillance 13 device of the kind stated in the warrant on the stated 14 premises; and 15 (ii) the entry, by force if necessary, onto the premises, or 16 other stated premises adjoining or providing access to the 17 premises, for a purpose mentioned in subparagraph (i) or 18 subsection (3); 19 (b) for a warrant mentioned in subsection (1) (b)-- 20 (i) the installation, use and maintenance of a surveillance 21 device of the kind stated in the warrant in or on the stated 22 object or an object of the stated class; and 23 (ii) the entry, by force if necessary, onto any premises where 24 the object, or an object of the class, is believed on 25 reasonable grounds to be or is likely to be, or other 26 premises adjoining or providing access to those premises, 27 for a purpose mentioned in subparagraph (i) or 28 subsection (3); Crimes (Surveillance Devices) Bill 2010 page 11 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Division 2.2 Surveillance device warrants Section 15 1 (c) for a warrant mentioned in subsection (1) (c)-- 2 (i) the installation, use and maintenance of a surveillance 3 device of the kind stated in the warrant, on premises 4 where the person is believed on reasonable grounds to be 5 or likely to be; and 6 (ii) the entry, by force if necessary, onto the premises 7 mentioned in subparagraph (i), or other premises 8 adjoining or providing access to those premises, for a 9 purpose mentioned in subparagraph (i) or subsection (3). 10 (3) Each surveillance device warrant also authorises the following: 11 (a) the retrieval of the surveillance device; 12 (b) the installation, use, maintenance and retrieval of any 13 enhancement equipment in relation to the surveillance device; 14 (c) the temporary removal of an object or vehicle from premises 15 for the purpose of the installation, maintenance or retrieval of 16 the surveillance device or enhancement equipment and the 17 return of the object or vehicle to the premises; 18 (d) the breaking open of anything for the purpose of the 19 installation, maintenance or retrieval of the surveillance device 20 or enhancement equipment; 21 (e) the connection of the surveillance device or enhancement 22 equipment to an electricity supply system and the use of 23 electricity from that system to operate the surveillance device 24 or enhancement equipment; 25 (f) the connection of the surveillance device or enhancement 26 equipment to any object or system that may be used to transmit 27 information in any form and the use of that object or system in 28 connection with the operation of the surveillance device or 29 enhancement equipment; page 12 Crimes (Surveillance Devices) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Surveillance device warrants Division 2.2 Section 16 1 (g) the provision of assistance or technical expertise to the law 2 enforcement officer primarily responsible for executing the 3 warrant in the installation, use, maintenance or retrieval of the 4 surveillance device or enhancement equipment. 5 (4) A surveillance device warrant may authorise the doing of anything 6 reasonably necessary to conceal the fact that anything has been done 7 in relation to the installation, use, maintenance or retrieval of a 8 surveillance device or enhancement equipment under the warrant. 9 (5) A law enforcement officer may use a surveillance device under a 10 warrant only if the officer is acting in the performance of the 11 officer's duty. 12 (6) This section applies to a surveillance device warrant subject to any 13 conditions stated in the warrant. 14 (7) Nothing in this section authorises the doing of anything for which a 15 warrant would be required under the Telecommunications 16 (Interception and Access) Act 1979 (Cwlth). 17 16 Extension and amendment of surveillance device warrant 18 (1) A law enforcement officer to whom a surveillance device warrant 19 has been issued (or another person on the officer's behalf ) may 20 apply, at any time before the expiry of the warrant-- 21 (a) for an extension of the warrant for a period not exceeding 90 22 days after the day when it would otherwise expire; or 23 (b) for an amendment of any of the other terms of the warrant. 24 (2) The application must be made to-- 25 (a) a judge, if the warrant was issued by a judge; or 26 (b) a magistrate, if the warrant was issued by a magistrate. Crimes (Surveillance Devices) Bill 2010 page 13 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Division 2.2 Surveillance device warrants Section 17 1 (3) Section 11 (Application for a surveillance device warrant) and 2 section 12 (Remote application) apply, with any necessary changes, 3 to an application under this section as if it were an application for 4 the warrant. 5 (4) The judge or magistrate may grant an application, subject to any 6 conditions the judge or magistrate thinks fit, if satisfied that the 7 matters mentioned in section 13 (1) (Deciding the application) still 8 exist, having regard to the matters in section 13 (2). 9 (5) If the judge or magistrate grants the application, the judge or 10 magistrate must endorse the new expiry date or the other amended 11 term on the original warrant. 12 (6) An application may be made under this section more than once. 13 17 Revocation of surveillance device warrant 14 (1) A surveillance device warrant may be revoked at any time before 15 the end of the period of validity stated in it by-- 16 (a) a judge, if a judge issued the warrant; or 17 (b) a magistrate, if a magistrate issued the warrant. 18 (2) A judge or magistrate may revoke a surveillance device warrant on 19 application by or on behalf of a law enforcement officer. 20 (3) A judge or magistrate who revokes a warrant must give notice of the 21 revocation to the chief officer of the law enforcement agency of 22 which the law enforcement officer to whom the warrant was issued 23 is a member. 24 (4) If the judge or magistrate revokes the warrant on the application of a 25 law enforcement officer, the judge or magistrate is taken to have 26 notified the chief officer under subsection (3) when the judge or 27 magistrate revokes the warrant. page 14 Crimes (Surveillance Devices) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Surveillance device warrants Division 2.2 Section 18 1 18 Discontinuance of use of surveillance device under 2 warrant 3 (1) This section applies if a surveillance device warrant is issued to a 4 law enforcement officer of a law enforcement agency. 5 (2) If the chief officer of the law enforcement agency is satisfied that 6 the use of a surveillance device under the warrant is no longer 7 necessary for the purpose of enabling evidence to be obtained of the 8 commission of the relevant offence or the identity or location of the 9 offender, the chief officer must-- 10 (a) take the steps necessary to ensure that use of the surveillance 11 device authorised by the warrant is discontinued as soon as 12 practicable; and 13 (b) ensure an application is made for the revocation of the warrant 14 under section 17. 15 (3) If the chief officer is notified that the warrant has been revoked 16 under section 17, the chief officer must take the steps necessary to 17 ensure that use of the surveillance device authorised by the warrant 18 is discontinued immediately. 19 (4) If the law enforcement officer to whom the warrant is issued, or who 20 is primarily responsible for executing the warrant, believes that use 21 of a surveillance device under the warrant is no longer necessary for 22 the purpose of enabling evidence to be obtained of the commission 23 of the relevant offence or the identity or location of the offender, the 24 officer must tell the chief officer of the law enforcement agency 25 immediately. Crimes (Surveillance Devices) Bill 2010 page 15 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Division 2.3 Retrieval warrants Section 19 1 Division 2.3 Retrieval warrants 2 19 Retrieval warrant--application 3 (1) A law enforcement officer (or another person on the officer's 4 behalf) may apply for the issue of a retrieval warrant in relation to a 5 surveillance device that-- 6 (a) was lawfully installed on premises, or in or on an object, under 7 a surveillance device warrant; and 8 (b) the law enforcement officer suspects or believes on reasonable 9 grounds is still on those premises or in or on that object, or on 10 other premises or in or on another object. 11 (2) The application may be made to-- 12 (a) a judge; or 13 (b) for an application for a retrieval warrant authorising the 14 retrieval of a tracking device only--a magistrate. 15 (3) Subject to this section, an application must be supported by an 16 affidavit setting out the grounds on which the warrant is sought. 17 (4) An application for a retrieval warrant may be made before an 18 affidavit is prepared or sworn if a law enforcement officer believes 19 that-- 20 (a) the immediate retrieval of a surveillance device is necessary; 21 and 22 (b) it is impracticable for an affidavit to be prepared or sworn 23 before an application for a warrant is made. 24 (5) If subsection (4) applies, the applicant must-- 25 (a) give as much information as the judge or magistrate considers 26 is reasonably practicable in the circumstances; and page 16 Crimes (Surveillance Devices) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Retrieval warrants Division 2.3 Section 20 1 (b) not later than 72 hours after making the application, send a 2 sworn affidavit to the judge or magistrate who determined the 3 application, whether or not a warrant has been issued. 4 (6) An application for a warrant must not be heard in open court. 5 20 Retrieval warrant--remote application 6 (1) If a law enforcement officer believes that it is impracticable for an 7 application for a retrieval warrant to be made in person, the 8 application may be made under section 19 by telephone, fax, email 9 or any other means of communication. 10 (2) If transmission by fax is available and an affidavit has been 11 prepared, the person applying must send a copy of the affidavit, 12 whether sworn or unsworn, to the judge or magistrate who is to 13 decide the application. 14 21 Retrieval warrant--deciding the application 15 (1) A judge or magistrate may issue a retrieval warrant if satisfied 16 that-- 17 (a) there are reasonable grounds for the suspicion or belief 18 founding the application for the warrant; and 19 (b) for an unsworn application--it would have been impracticable 20 for an affidavit to have been prepared or sworn before the 21 application was made; and 22 (c) for a remote application--it would have been impracticable for 23 the application to have been made in person. 24 (2) In deciding whether a retrieval warrant should be issued, the judge 25 or magistrate must have regard to-- 26 (a) the extent to which the privacy of any person is likely to be 27 affected; and Crimes (Surveillance Devices) Bill 2010 page 17 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Division 2.3 Retrieval warrants Section 22 1 (b) the public interest in retrieving the device sought to be 2 retrieved. 3 22 What must a retrieval warrant contain? 4 (1) A retrieval warrant must-- 5 (a) state that the judge or magistrate is satisfied of the matters 6 mentioned in section 21 (1) and has had regard to the matters 7 mentioned in section 21 (2); and 8 (b) state the following: 9 (i) the name of the applicant; 10 (ii) the date the warrant is issued; 11 (iii) the kind of surveillance device authorised to be retrieved; 12 (iv) the premises or object from which the surveillance device 13 is to be retrieved; 14 (v) the period (not more than 90 days) during which the 15 warrant is in force; 16 (vi) the name of the law enforcement officer primarily 17 responsible for executing the warrant; 18 (vii) any conditions subject to which premises may be entered 19 under the warrant. 20 (2) A warrant must be signed by the person issuing it and include the 21 person's name. 22 (3) If the judge or magistrate issues a warrant on a remote application, 23 the judge or magistrate must-- 24 (a) tell the applicant-- 25 (i) the terms of the warrant; and 26 (ii) the date and time the warrant was issued; and page 18 Crimes (Surveillance Devices) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Retrieval warrants Division 2.3 Section 23 1 (b) enter the terms and date mentioned in paragraph (a) in a 2 register kept by the judge or magistrate for the purpose; and 3 (c) give the applicant a copy of the warrant as soon as practicable. 4 23 What a retrieval warrant authorises 5 (1) A retrieval warrant authorises the following: 6 (a) the retrieval of the surveillance device stated in the warrant and 7 any enhancement equipment in relation to the device; 8 (b) the entry, by force if necessary, onto the premises where the 9 surveillance device is believed on reasonable grounds to be, or 10 other premises adjoining or providing access to those premises, 11 for the purpose of retrieving the device and equipment; 12 (c) the breaking open of any thing for the purpose of retrieving the 13 device and equipment; 14 (d) if the device or equipment is installed on or in an object, the 15 temporary removal of the object from any premises where it is 16 located for the purpose of retrieving the device and equipment 17 and the return of the object to those premises; 18 (e) the provision of assistance or technical expertise to the law 19 enforcement officer primarily responsible for executing the 20 warrant in the retrieval of the device or equipment. 21 (2) If the retrieval warrant authorises the retrieval of a tracking device, 22 the warrant also authorises the use of the tracking device and any 23 enhancement equipment in relation to the device solely for the 24 purposes of the location and retrieval of the device or equipment. 25 (3) A retrieval warrant may authorise the doing of anything reasonably 26 necessary to conceal the fact that anything has been done in relation 27 to the retrieval of a surveillance device or enhancement equipment 28 under the warrant. Crimes (Surveillance Devices) Bill 2010 page 19 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Division 2.3 Retrieval warrants Section 24 1 (4) This section applies to a retrieval warrant subject to any conditions 2 stated in the warrant. 3 24 Revocation of retrieval warrant 4 (1) A retrieval warrant may be revoked at any time before the end of the 5 period of validity stated in it by-- 6 (a) a judge, if a judge issued the warrant; or 7 (b) a magistrate, if a magistrate issued the warrant. 8 (2) A judge or magistrate may revoke a retrieval warrant on application 9 by or on behalf of a law enforcement officer. 10 (3) A judge or magistrate who revokes a warrant must give notice of the 11 revocation to the chief officer of the law enforcement agency of 12 which the law enforcement officer to whom the warrant was issued 13 is a member. 14 (4) If the judge or magistrate revokes the warrant on the application of a 15 law enforcement officer, the judge or magistrate is taken to have 16 notified the chief officer under subsection (3) when the judge or 17 magistrate revokes the warrant. 18 (5) If the chief officer of a law enforcement agency is satisfied that the 19 grounds for issue of a retrieval warrant to a law enforcement officer 20 of the agency no longer exist, the chief officer must ensure an 21 application is made for the revocation of the warrant under this 22 section. 23 (6) If the law enforcement officer to whom a retrieval warrant has been 24 issued, or who is primarily responsible for executing a retrieval 25 warrant, believes that the grounds for issue of the warrant no longer 26 exist, the officer must tell the chief officer of the law enforcement 27 agency immediately. page 20 Crimes (Surveillance Devices) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 25 1 Part 3 Emergency authorisations 2 25 Emergency authorisation--risk of serious personal 3 violence or substantial property damage 4 (1) A law enforcement officer of a law enforcement agency may apply 5 to the chief officer of the agency for an emergency authorisation for 6 the use of a surveillance device if, in the course of an investigation, 7 the law enforcement officer suspects or believes on reasonable 8 grounds that-- 9 (a) an imminent threat of serious violence to a person or 10 substantial damage to property exists; and 11 (b) the use of a surveillance device is immediately necessary for 12 the purpose of dealing with that threat; and 13 (c) the circumstances are so serious and the matter is of such 14 urgency that the use of a surveillance device is warranted; and 15 (d) it is not practicable in the circumstances to apply for a 16 surveillance device warrant. 17 (2) An application may be made orally, in writing or by telephone, fax, 18 email or any other means of communication. 19 (3) The chief officer may give an emergency authorisation for the use of 20 a surveillance device on an application under subsection (1) if 21 satisfied that there are reasonable grounds for the suspicion or belief 22 founding the application. 23 (4) An emergency authorisation given under this section may authorise 24 the law enforcement officer to whom it is given to do anything that a 25 surveillance device warrant may authorise the officer to do. Crimes (Surveillance Devices) Bill 2010 page 21 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 26 1 26 Emergency authorisation--continued use of authorised 2 surveillance device in participating jurisdiction 3 (1) A law enforcement officer of a law enforcement agency may apply 4 to the chief officer of the agency for an emergency authorisation for 5 the use of a surveillance device if-- 6 (a) use of the surveillance device in the ACT is authorised under a 7 territory law, in connection with an investigation into a 8 relevant offence; and 9 (b) the law enforcement officer suspects or believes on reasonable 10 grounds that-- 11 (i) the investigation in relation to which the surveillance 12 device is authorised in the ACT is likely to extend to a 13 participating jurisdiction; and 14 (ii) the use of the surveillance device in a participating 15 jurisdiction is immediately necessary to prevent the loss 16 of any evidence; and 17 (iii) the circumstances are so serious and the matter is of such 18 urgency that the use of the surveillance device in the 19 participating jurisdiction is warranted; and 20 (iv) it is not practicable in the circumstances to apply for a 21 surveillance device warrant. 22 (2) An application may be made orally, in writing or by telephone, fax, 23 email or any other means of communication. 24 (3) The chief officer may give an emergency authorisation for the use of 25 a surveillance device on an application under subsection (1) if 26 satisfied that-- 27 (a) use of the surveillance device in the ACT is authorised under a 28 territory law, in connection with an investigation into a 29 relevant offence; and page 22 Crimes (Surveillance Devices) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 27 1 (b) there are reasonable grounds for the suspicion or belief 2 founding the application. 3 (4) An emergency authorisation given under this section may authorise 4 the law enforcement officer to whom it is given to do anything that a 5 surveillance device warrant may authorise the officer to do. 6 27 Application for approval after use of surveillance device 7 under emergency authorisation 8 (1) Within 2 working days after giving an emergency authorisation, the 9 chief officer (or another person on the officer's behalf) must apply 10 to a judge for approval of the exercise of powers under the 11 emergency authorisation. 12 (2) An application-- 13 (a) must state-- 14 (i) the name of the applicant; and 15 (ii) the kind of surveillance device sought to be approved and, 16 if a warrant is sought, the nature and duration of the 17 warrant; and 18 (b) must be supported by an affidavit setting out the grounds on 19 which the approval (and warrant, if any) is sought. 20 (3) The judge may refuse to consider the application until the applicant 21 gives the judge all the information the judge requires about the 22 application in the way the judge requires. 23 (4) An application must not be heard in open court. Crimes (Surveillance Devices) Bill 2010 page 23 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 28 1 28 Consideration of application 2 (1) Before deciding an application for approval in relation to an 3 emergency authorisation given under section 25 (Emergency 4 authorisation--risk of serious personal violence or substantial 5 property damage), the judge must, in particular, and being mindful 6 of the intrusive nature of using a surveillance device, consider the 7 following: 8 (a) the nature of the risk of serious violence to a person or 9 substantial damage to property; 10 (b) the extent to which issuing a surveillance device warrant would 11 have helped reduce or avoid the risk; 12 (c) the extent to which law enforcement officers could have used 13 alternative methods of investigation to help reduce or avoid the 14 risk; 15 (d) how much the use of alternative methods of investigation could 16 have helped reduce or avoid the risk; 17 (e) how much the use of alternative methods of investigation 18 would have prejudiced the safety of the person or property 19 because of delay or for another reason; 20 (f) whether or not it was practicable in the circumstances to apply 21 for a surveillance device warrant. 22 (2) Before deciding an application for approval in relation to an 23 emergency authorisation given under section 26 (Emergency 24 authorisation--continued use of authorised surveillance device in 25 participating jurisdiction), the judge must, in particular, and being 26 mindful of the intrusive nature of using a surveillance device, 27 consider the following: 28 (a) the nature of the risk of the loss of evidence; 29 (b) the extent to which issuing a surveillance device warrant would 30 have helped reduce or avoid the risk; page 24 Crimes (Surveillance Devices) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 29 1 (c) the terms of the existing authorisation for the use of the 2 surveillance device; 3 (d) whether or not it was practicable in the circumstances to apply 4 for a surveillance device warrant. 5 29 Judge may approve emergency use of powers 6 (1) After considering an application for approval in relation to an 7 emergency authorisation given under section 25 (Emergency 8 authorisation--risk of serious personal violence or substantial 9 property damage), the judge may approve the application if satisfied 10 that there were reasonable grounds to suspect or believe that-- 11 (a) there was a risk of serious violence to a person or substantial 12 damage to property; and 13 (b) using a surveillance device may have helped reduce the risk; 14 and 15 (c) it was not practicable in the circumstances to apply for a 16 surveillance device warrant. 17 (2) After considering an application for approval in relation to an 18 emergency authorisation given under section 26 (Emergency 19 authorisation--continued use of authorised surveillance device in 20 participating jurisdiction), the judge may approve the application if 21 satisfied that-- 22 (a) use of the surveillance device in the ACT was authorised under 23 a territory law, in connection with an investigation into a 24 relevant offence; and 25 (b) there were reasonable grounds to suspect or believe that-- 26 (i) there was a risk of loss of evidence; and 27 (ii) using the surveillance device in a participating 28 jurisdiction may have helped reduce the risk; and Crimes (Surveillance Devices) Bill 2010 page 25 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 30 1 (c) it was not practicable in the circumstances to apply for a 2 surveillance device warrant. 3 (3) If the judge approves an application under this section, the judge 4 may issue a surveillance device warrant for the continued use of the 5 surveillance device as if the application were an application for a 6 surveillance device warrant under division 2 (Surveillance device 7 warrants). 8 (4) If the judge does not approve an application under this section, the 9 judge may order that the use of the surveillance device cease. 10 (5) The judge may order that any information obtained from or relating 11 to the exercise of powers under the emergency authorisation or any 12 record of that information be dealt with in the way stated in the 13 order. 14 30 Admissibility of evidence 15 If the exercise of powers under an emergency authorisation is 16 approved under section 29, evidence obtained because of the 17 exercise of those powers is not inadmissible in any proceeding only 18 because the evidence was obtained before the approval. page 26 Crimes (Surveillance Devices) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 31 1 Part 4 Recognition of corresponding 2 warrants and authorisations 3 31 Corresponding warrants 4 A corresponding warrant may be executed in the ACT in accordance 5 with its terms as if it were a surveillance device warrant or retrieval 6 warrant issued under part 2 (Warrants). 7 32 Corresponding emergency authorisations 8 (1) A corresponding emergency authorisation authorises the use of a 9 surveillance device in accordance with its terms in the ACT, as if it 10 were an emergency authorisation given under part 3 (Emergency 11 authorisations). 12 (2) Subsection (1) does not apply at any time after a judge orders, under 13 a provision of a corresponding law that corresponds to section 29 (4) 14 (Judge may approve emergency use of powers), that the use of a 15 surveillance device under the corresponding emergency 16 authorisation cease. Crimes (Surveillance Devices) Bill 2010 page 27 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Division 5.1 Restrictions on use, communication and publication of information Section 33 1 Part 5 Compliance and monitoring 2 Division 5.1 Restrictions on use, communication 3 and publication of information 4 33 What is protected information?--div 5.1 5 In this division: 6 protected information means-- 7 (a) any information obtained from the use of a surveillance device 8 under a warrant, emergency authorisation, corresponding 9 warrant or corresponding emergency authorisation; or 10 (b) any information relating to-- 11 (i) an application for, issue of, existence of or expiry of a 12 warrant, emergency authorisation, corresponding warrant 13 or corresponding emergency authorisation; or 14 (ii) an application for approval of powers exercised under an 15 emergency authorisation; or 16 (iii) an application under a corresponding law for approval of 17 powers exercised under a corresponding emergency 18 authorisation. 19 34 Prohibition on communication or publication of protected 20 information 21 (1) A person commits an offence if-- 22 (a) the person uses information; and 23 (b) the information is protected information; and 24 (c) the use of the information is not permitted by this section; and page 28 Crimes (Surveillance Devices) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Restrictions on use, communication and publication of information Division 5.1 Section 34 1 (d) the person is reckless about whether the use of the information 2 is not permitted by this section. 3 Maximum penalty: imprisonment for 2 years. 4 Note The fault element of recklessness can be satisfied by proof of intention, 5 knowledge or recklessness (see Criminal Code, s 20 (4)). 6 (2) A person commits an offence if-- 7 (a) the person communicates information; and 8 (b) the information is protected information; and 9 (c) the communication of the information is not permitted by this 10 section; and 11 (d) the person is reckless about whether the communication of the 12 information is not permitted by this section. 13 Maximum penalty: imprisonment for 2 years. 14 (3) A person commits an offence if-- 15 (a) the person publishes information; and 16 (b) the information is protected information; and 17 (c) the publication of the information is not permitted by this 18 section; and 19 (d) the person is reckless about whether the publication of the 20 information is not permitted by this section. 21 Maximum penalty: imprisonment for 2 years. 22 (4) A person commits an offence if the person commits an offence 23 against subsection (1), (2) or (3) in circumstances in which the 24 person-- 25 (a) intends to endanger the health or safety of anyone; or Crimes (Surveillance Devices) Bill 2010 page 29 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Division 5.1 Restrictions on use, communication and publication of information Section 34 1 (b) is reckless about whether the disclosure of the information 2 endangers or will endanger the health or safety of anyone. 3 Maximum penalty: imprisonment for 10 years. 4 (5) A person commits an offence if the person commits an offence 5 against subsection (1), (2) or (3) in circumstances in which the 6 person-- 7 (a) intends to prejudice the effective conduct of an investigation; 8 or 9 (b) is reckless about whether the disclosure of the information 10 prejudices or will prejudice the effective conduct of an 11 investigation. 12 Maximum penalty: imprisonment for 10 years. 13 (6) Subsections (1) to (5) do not apply to-- 14 (a) the use, communication or publication of-- 15 (i) any information if the information has been disclosed in 16 proceedings in open court; or 17 (ii) any information if the information has entered the public 18 domain; or 19 (b) the use or communication of protected information by a person 20 if the person believes on reasonable grounds that the use or 21 communication is necessary to help prevent or reduce the risk 22 of serious violence to a person or substantial damage to 23 property; or 24 (c) the communication to the Director-General (within the 25 meaning of the Australian Security Intelligence Organisation 26 Act 1979 (Cwlth)) of protected information if the protected 27 information relates or appears to relate to activities prejudicial 28 to security (within the meaning of that Act); or page 30 Crimes (Surveillance Devices) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Restrictions on use, communication and publication of information Division 5.1 Section 34 1 (d) the use or communication of information mentioned in 2 paragraph (c) by an officer of the Australian Security 3 Intelligence Organisation if the use or communication is in the 4 performance of the officer's official functions; or 5 (e) the use or communication of information to a foreign country 6 or an appropriate authority of a foreign country if the use or 7 communication is in accordance with the Mutual Assistance in 8 Criminal Matters Act 1987 (Cwlth). 9 (7) Protected information may be used, communicated or published if it 10 is necessary to do so for any of the following purposes: 11 (a) the investigation of a relevant offence within the meaning of 12 this Act or a relevant offence within the meaning of a 13 corresponding law; 14 (b) the making of a decision whether or not to bring a prosecution 15 for a relevant offence within the meaning of this Act or a 16 relevant offence within the meaning of a corresponding law; 17 (c) a relevant proceeding within the meaning of this Act or a 18 relevant proceeding within the meaning of a corresponding 19 law; 20 (d) an investigation of a complaint against, or the conduct of, a 21 public officer within the meaning of this Act or a public officer 22 within the meaning of a corresponding law; 23 (e) the making of a decision in relation to the appointment, re- 24 appointment, term of appointment, termination or retirement of 25 a person mentioned in paragraph (d); 26 (f) the keeping of records and the making of reports by-- 27 (i) a law enforcement agency in accordance with the 28 obligations imposed by division 5.2 (Reporting and 29 record-keeping); or Crimes (Surveillance Devices) Bill 2010 page 31 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Division 5.1 Restrictions on use, communication and publication of information Section 34 1 (ii) a law enforcement agency (within the meaning of a 2 corresponding law) in accordance with the obligations 3 imposed by provisions of the corresponding law that 4 correspond to division 5.2; 5 (g) an inspection by the ombudsman under section 42 (Inspection 6 of records by ombudsman) or an inspection under a provision 7 of a corresponding law that corresponds to section 42; 8 (h) an investigation under the Privacy Act 1988 (Cwlth) or a law 9 of a participating jurisdiction or another law of the 10 Commonwealth concerning the privacy of personal 11 information. 12 (8) Subsections (6) (c) and (d) and (7) (a), (b) and (c) do not authorise 13 the use, communication or publication of protected information in 14 relation to an emergency authorisation or corresponding emergency 15 authorisation unless the use of powers under that emergency 16 authorisation has been approved under section 29 (Judge may 17 approve emergency use of powers) or the provisions of a 18 corresponding law that correspond to section 29. 19 (9) A reference in subsection (8) to a relevant offence (whether of the 20 ACT or another jurisdiction) is a reference to any relevant offence 21 of the relevant jurisdiction, whether or not it is the offence of the 22 relevant jurisdiction in relation to which the relevant warrant or 23 emergency authorisation was issued or given. page 32 Crimes (Surveillance Devices) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Restrictions on use, communication and publication of information Division 5.1 Section 35 1 35 Dealing with records obtained by use of surveillance 2 devices 3 (1) The chief officer of a law enforcement agency must cause-- 4 (a) every record or report obtained by use of a surveillance device 5 by a law enforcement officer of the agency under a warrant, 6 emergency authorisation, corresponding warrant or 7 corresponding emergency authorisation to be kept in a secure 8 place that is not accessible to people who are not entitled to 9 deal with the record or report; and 10 (b) any record or report mentioned in paragraph (a) to be 11 destroyed, if satisfied that it is not likely to be required in 12 connection with a purpose mentioned in section 34 (6) or (7). 13 (2) Subsection (1) does not apply to a record or report that is received 14 into evidence in legal proceedings or disciplinary proceedings. 15 36 Protection of surveillance device technologies and 16 methods 17 (1) In any proceeding, a person may object to the disclosure of 18 information on the ground that the information, if disclosed, could 19 reasonably be expected to reveal details of surveillance device 20 technology or methods of installation, use or retrieval of 21 surveillance devices. 22 (2) If the person conducting or presiding over the proceeding is satisfied 23 that the ground of objection is made out, the person may order that 24 the person who has the information not be required to disclose it in 25 the proceeding. 26 (3) In determining whether or not to make an order under 27 subsection (2), the person conducting or presiding over the 28 proceeding must take into account whether disclosure of the 29 information-- 30 (a) is necessary for the fair trial of the defendant; or Crimes (Surveillance Devices) Bill 2010 page 33 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Division 5.1 Restrictions on use, communication and publication of information Section 37 1 (b) is in the public interest. 2 (4) Subsection (2) does not affect a provision of another law under 3 which a law enforcement officer cannot be compelled to disclose 4 information or make statements in relation to the information. 5 (5) If the person conducting or presiding over a proceeding is satisfied 6 that publication of any information disclosed in the proceeding 7 could reasonably be expected to reveal details of surveillance device 8 technology or methods of installation, use or retrieval of 9 surveillance devices, the person must make any orders prohibiting 10 or restricting publication of the information that the person 11 considers necessary to ensure that those details are not revealed. 12 (6) Subsection (5) does not apply to the extent that the person 13 conducting or presiding over the proceeding considers that the 14 interests of justice require otherwise. 15 (7) In this section: 16 proceeding includes a proceeding before a court, tribunal or Royal 17 Commission. 18 37 Protected information in the custody of a court 19 A person is not entitled to search any protected information in the 20 custody of a court unless the court otherwise orders in the interests 21 of justice. page 34 Crimes (Surveillance Devices) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Reporting and record-keeping Division 5.2 Section 38 1 Division 5.2 Reporting and record-keeping 2 38 Annual reports 3 (1) The chief officer of a law enforcement agency must give a written 4 report to the Minister that includes the following information in 5 relation to each financial year: 6 (a) the number of applications for warrants by and the number of 7 warrants issued to law enforcement officers of the agency 8 during the year; 9 (b) the number of applications for emergency authorisations by 10 and the number of emergency authorisations given to law 11 enforcement officers of the agency during the year; 12 (c) the number of remote applications for warrants by law 13 enforcement officers of the agency during the year; 14 (d) the number of applications for warrants or emergency 15 authorisations by law enforcement officers of the agency that 16 were refused during the year, and the reasons for refusal; 17 (e) the number of applications for extensions of warrants by law 18 enforcement officers of the agency during the year, the number 19 of extensions granted or refused and the reasons why the 20 extensions were granted or refused; 21 (f) the number of arrests made by law enforcement officers of the 22 agency during the year on the basis (wholly or partly) of 23 information obtained by the use of a surveillance device under 24 a warrant or emergency authorisation; 25 (g) the number of prosecutions that were commenced in the ACT 26 during the year in which information obtained by the use of a 27 surveillance device under a warrant or emergency authorisation 28 was given in evidence and the number of those prosecutions in 29 which a person was found guilty; Crimes (Surveillance Devices) Bill 2010 page 35 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Division 5.2 Reporting and record-keeping Section 39 1 (h) any other information relating to the use of surveillance 2 devices and the administration of this Act that the Minister 3 considers appropriate. 4 (2) The information mentioned in subsection (1) (a) and (b) must be 5 presented in a way that identifies the number of warrants issued and 6 emergency authorisations given in relation to each different kind of 7 surveillance device. 8 (3) The report must be given to the Minister as soon as practicable after 9 the end of each financial year, and in any event within 3 months 10 after the end of the financial year. 11 (4) The Minister must present a copy of the report to the Legislative 12 Assembly within 15 sitting days after the day the Minister receives 13 it. 14 39 Keeping documents connected with warrants and 15 emergency authorisations 16 The chief officer of a law enforcement agency must cause the 17 following to be kept: 18 (a) each warrant issued to a law enforcement officer of the agency; 19 (b) each notice given to the chief officer under section 17 (3) 20 (Revocation of surveillance device warrant) of revocation of a 21 warrant; 22 (c) each emergency authorisation given to a law enforcement 23 officer of the agency; 24 (d) each application made by a law enforcement officer of the 25 agency for an emergency authorisation; 26 (e) a copy of each application made by a law enforcement officer 27 of the agency for the following: 28 (i) a warrant; 29 (ii) extension, amendment or revocation of a warrant; page 36 Crimes (Surveillance Devices) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Reporting and record-keeping Division 5.2 Section 40 1 (iii) approval of the exercise of powers under an emergency 2 authorisation; 3 (f) a copy of each certificate issued by the chief officer, or person 4 assisting the officer, under section 43 (Evidentiary certificates). 5 40 Other records to be kept 6 The chief officer of a law enforcement agency must keep the 7 following records: 8 (a) a statement as to whether each application made by a law 9 enforcement officer of the agency for a warrant, or extension, 10 amendment or revocation of a warrant, was granted, refused or 11 withdrawn; 12 (b) for each warrant issued to a law enforcement officer of the 13 agency, a statement about whether the warrant was executed; 14 (c) for each surveillance device warrant mentioned in a statement 15 under paragraph (b) that was executed, a statement setting out 16 the following information: 17 (i) the name of each person involved in the execution of the 18 warrant; 19 (ii) the kind of surveillance device used; 20 (iii) the period during which the device was used; 21 (iv) the name, if known, of any person whose conversations or 22 activities were overheard, recorded, monitored, listened to 23 or observed by the use of the device; 24 (v) the name, if known, of any person whose geographical 25 location was worked out by the use of a tracking device; 26 (vi) details of any premises on which the device was installed 27 or any place at which the device was used; Crimes (Surveillance Devices) Bill 2010 page 37 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Division 5.2 Reporting and record-keeping Section 40 1 (vii) details of any object in or on which the device was 2 installed or any premises where the object was located 3 when the device was installed; 4 (viii) details of the benefit to the investigation of the use of the 5 device and of the general use made or to be made of any 6 evidence or information obtained by the use of the device; 7 (ix) details of the compliance with the conditions (if any) to 8 which the warrant was subject; 9 (x) if the warrant was extended or amended, the number of 10 extensions or amendments and the reasons for them; 11 (d) for each retrieval warrant mentioned in a statement under 12 paragraph (b) that was executed, a statement setting out the 13 following information: 14 (i) details of any premises entered, anything opened and any 15 object removed and replaced under the warrant; 16 (ii) whether the surveillance device was retrieved under the 17 warrant; 18 (iii) if the device was not retrieved, the reason why; 19 (iv) details of the compliance with the conditions (if any) to 20 which the warrant was subject; 21 (e) a statement as to whether each application made by a law 22 enforcement officer of the agency for an emergency 23 authorisation, or for approval of powers exercised under an 24 emergency authorisation, was granted, refused or withdrawn; 25 (f) details of each use by the agency, or by a law enforcement 26 officer of the agency, of information obtained by the use of a 27 surveillance device by a law enforcement officer of the agency; page 38 Crimes (Surveillance Devices) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Reporting and record-keeping Division 5.2 Section 41 1 (g) details of each communication by a law enforcement officer of 2 the agency to a person other than a law enforcement officer of 3 the agency of information obtained by the use of a surveillance 4 device by a law enforcement officer of the agency; 5 (h) details of each occasion when, to the knowledge of a law 6 enforcement officer of the agency, information obtained by the 7 use of a surveillance device by a law enforcement officer of the 8 agency was given in evidence in a relevant proceeding; 9 (i) details of the destruction of records or reports under 10 section 35 (1) (b) (Dealing with records obtained by use of 11 surveillance devices). 12 41 Register of warrants and emergency authorisations 13 (1) The chief officer of a law enforcement agency must keep a register 14 of warrants and emergency authorisations. 15 (2) The register must state, for each warrant issued to a law 16 enforcement officer of the agency-- 17 (a) the date of issue of the warrant; and 18 (b) the name of the judge or magistrate who issued the warrant; 19 and 20 (c) the name of the law enforcement officer named in the warrant 21 as the person primarily responsible for executing it; and 22 (d) the relevant offence in relation to which the warrant was 23 issued; and 24 (e) the period during which the warrant is in force; and 25 (f) details of any amendment or extension of the warrant. 26 (3) The register must state, for each emergency authorisation given to a 27 law enforcement officer of the agency-- 28 (a) the date the emergency authorisation was given; and Crimes (Surveillance Devices) Bill 2010 page 39 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Division 5.3 Inspections Section 42 1 (b) the name of the chief officer who gave the emergency 2 authorisation; and 3 (c) the name of the law enforcement officer to whom the 4 emergency authorisation was given; and 5 (d) the relevant offence in relation to which the emergency 6 authorisation was given; and 7 (e) the date when the application for approval of powers exercised 8 under the emergency authorisation was made. 9 Division 5.3 Inspections 10 42 Inspection of records by ombudsman 11 (1) The ombudsman may inspect the records of a law enforcement 12 agency to determine the extent of compliance with this Act by the 13 agency and law enforcement officers of the agency. 14 (2) For an inspection under this section, the ombudsman-- 15 (a) after notifying the chief officer of the law enforcement agency, 16 may enter at any reasonable time premises occupied by the 17 agency; and 18 (b) is entitled to have full and free access at all reasonable times to 19 all records of the agency that are relevant to the inspection; and 20 (c) may require a member of staff of the agency to give the 21 ombudsman any information that the ombudsman considers 22 necessary, being information that is in the member's 23 possession, or to which the member has access, and that is 24 relevant to the inspection. 25 (3) The chief officer must ensure that members of staff of the agency 26 give the ombudsman any assistance the ombudsman reasonably 27 requires to enable the ombudsman to exercise functions under this 28 section. page 40 Crimes (Surveillance Devices) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] General Division 5.4 Section 43 1 (4) The ombudsman must give a written report prepared under the 2 Annual Reports (Government Agencies) Act 2004 on the results of 3 each inspection under this section in the preceding financial year. 4 (5) The report must include a report on the comprehensiveness and 5 adequacy of the records of the agency and the cooperation given by 6 the agency in facilitating the inspection by the ombudsman of those 7 records. 8 (6) The report must not include any information that, if made public, 9 could reasonably be expected to-- 10 (a) endanger a person's safety; or 11 (b) prejudice an investigation or prosecution; or 12 (c) compromise any law enforcement agency's operational 13 activities or methodologies. 14 Division 5.4 General 15 43 Evidentiary certificates 16 (1) The chief officer of a law enforcement agency, or a person assisting 17 the officer, may issue a written certificate signed by the officer or 18 person setting out any facts the officer or person considers relevant 19 in relation to-- 20 (a) anything done by a law enforcement officer of the agency, or 21 by a person assisting or providing technical expertise to the 22 officer, in connection with the execution of a warrant or in 23 accordance with an emergency authorisation; or 24 (b) anything done by a law enforcement officer of the agency in 25 connection with-- 26 (i) the communication by a person to someone else of; or 27 (ii) the making use of; or 28 (iii) the making of a record of; or Crimes (Surveillance Devices) Bill 2010 page 41 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Division 5.4 General Section 43 1 (iv) the custody of a record of-- 2 information obtained by the use of a surveillance device under 3 a warrant, emergency authorisation, corresponding warrant or 4 corresponding emergency authorisation. 5 (2) A document purporting to be a certificate issued under 6 subsection (1) or under a provision of a corresponding law that 7 corresponds to subsection (1) is admissible in evidence in any 8 proceeding. 9 (3) Subsection (2) does not apply to a certificate to the extent that the 10 certificate sets out facts in relation to anything done in accordance 11 with an emergency authorisation or corresponding emergency 12 authorisation unless the use of powers under that authorisation has 13 been approved under section 29 (Judge may approve emergency use 14 of powers) or under a provision of a corresponding law that 15 corresponds to section 29. page 42 Crimes (Surveillance Devices) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 44 1 Part 6 Miscellaneous 2 44 Delegation 3 (1) Except as provided by this section, and despite any other Act or law 4 to the contrary, the functions of a chief officer under this Act must 5 not be delegated to any other person. 6 (2) A chief officer may delegate to a senior officer of the law 7 enforcement agency any of the chief officer's functions under this 8 Act. 9 (3) In this section: 10 senior officer means a person for the time being holding office as-- 11 (a) in relation to the Australian Federal Police--a deputy chief 12 police officer; or 13 (b) in relation to the Australian Crime Commission, any of the 14 following: 15 (i) the Director National Operations; 16 (ii) a Director; 17 (iii) an office of the Australian Crime Commission that is 18 prescribed by regulation. 19 45 Regulation-making power 20 (1) The Executive may make regulations for this Act. 21 Note A regulation must be notified, and presented to the Legislative 22 Assembly, under the Legislation Act. 23 (2) A regulation may create offences and fix maximum penalties of not 24 more than 10 penalty units for the offences. Crimes (Surveillance Devices) Bill 2010 page 43 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 Dictionary 2 (see s 3) 3 Note 1 The Legislation Act contains definitions and other provisions relevant to 4 this Act. 5 Note 2 For example, the Legislation Act, dict, pt 1, defines the following terms: 6 · ACT 7 · Commonwealth 8 · function 9 · in relation to 10 · judge 11 · Legislative Assembly 12 · magistrate 13 · territory law 14 · working day. 15 applicant, for a warrant, means the law enforcement officer who 16 applies, or on whose behalf an application is made, for the warrant. 17 Australian Crime Commission means the Australian Crime 18 Commission established by the Australian Crime Commission 19 Act 2002 (Cwlth). 20 chief officer means-- 21 (a) in relation to the Australian Federal Police--the chief police 22 officer; and 23 (b) in relation to the Australian Crime Commission--the chief 24 executive officer of the Australian Crime Commission. 25 computer means an electronic device for storing or processing 26 information. 27 corresponding emergency authorisation means an authorisation 28 given under the provisions of a corresponding law that correspond 29 to part 3 (Emergency authorisations). page 44 Crimes (Surveillance Devices) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 corresponding law means a law of another jurisdiction that 2 corresponds to this Act, and includes a law of another jurisdiction 3 that is declared by regulation to correspond to this Act. 4 corresponding warrant means a warrant issued under the provisions 5 of a corresponding law that correspond to part 2 (Warrants). 6 data surveillance device-- 7 (a) means a device or program capable of being used to record or 8 monitor the input of information into or the output of 9 information from a computer; but 10 (b) does not include an optical surveillance device. 11 device includes instrument, apparatus and equipment. 12 disciplinary proceeding means a proceeding of a disciplinary nature 13 under a law of any jurisdiction or of the Commonwealth. 14 emergency authorisation means an emergency authorisation given 15 under part 3 (Emergency authorisations). 16 enhancement equipment, in relation to a surveillance device, means 17 equipment capable of enhancing a signal, image or other 18 information obtained by the use of the surveillance device. 19 install includes attach. 20 jurisdiction means a State or Territory of the Commonwealth. 21 law enforcement agency means-- 22 (a) the Australian Federal Police; or 23 (b) the Australian Crime Commission. 24 law enforcement officer-- 25 (a) means-- 26 (i) a police officer; or Crimes (Surveillance Devices) Bill 2010 page 45 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 (ii) a member of staff of the Australian Crime Commission; 2 and 3 (b) includes a person who is seconded to a law enforcement 4 agency, including (but not limited to) a member of the police 5 force or police service, and a police officer (however 6 described), of another jurisdiction. 7 listening device-- 8 (a) means a device capable of being used to overhear, record, 9 monitor or listen to a conversation or words spoken to or by 10 any person in conversation; but 11 (b) does not include a hearing aid or similar device used by a 12 person with impaired hearing to overcome the impairment and 13 permit that person to hear only sounds ordinarily audible to the 14 human ear. 15 maintain, in relation to a surveillance device, includes-- 16 (a) adjust, relocate, repair or service the device; and 17 (b) replace a faulty device. 18 optical surveillance device-- 19 (a) means a device capable of being used to record visually or 20 observe an activity; but 21 (b) does not include spectacles, contact lenses or a similar device 22 used by a person with impaired sight to overcome that 23 impairment. 24 participating jurisdiction means a jurisdiction in which a 25 corresponding law is in force. 26 premises includes the following, whether in or outside the ACT: 27 (a) land; 28 (b) a building or vehicle; page 46 Crimes (Surveillance Devices) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 (c) a part of a building or vehicle; 2 (d) any place, whether built on or not. 3 protected information, for division 5.1 (Restrictions on use, 4 communication and publication of information)--see section 33. 5 public officer-- 6 (a) means-- 7 (i) a person employed by, or holding an office established 8 under a law of, the Territory; or 9 (ii) a person employed by a territory authority; and 10 (b) includes a law enforcement officer. 11 record includes the following: 12 (a) an audio, visual or audiovisual record; 13 (b) a record in digital form; 14 (c) a documentary record prepared from a record mentioned in 15 paragraph (a) or (b). 16 relevant offence means-- 17 (a) an offence against an ACT law punishable by imprisonment of 18 3 years or more; or 19 (b) an offence against an ACT law prescribed by regulation. 20 relevant proceeding means any of the following: 21 (a) the prosecution of a relevant offence; 22 (b) a proceeding for the confiscation, forfeiture or restraint of 23 property or for the imposition of a pecuniary penalty in 24 connection with a relevant offence; 25 (c) a proceeding for the protection of a child or intellectually 26 impaired person; Crimes (Surveillance Devices) Bill 2010 page 47 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 (d) a proceeding concerning the validity of a warrant, emergency 2 authorisation, corresponding warrant or corresponding 3 emergency authorisation; 4 (e) a disciplinary proceeding against a public officer; 5 (f) a coronial inquest or inquiry if, in the opinion of the coroner, 6 the event that is the subject of the inquest or inquiry may have 7 resulted from the commission of a relevant offence; 8 (g) a proceeding under the Mutual Assistance in Criminal Matters 9 Act 1987 (Cwlth), section 13 in relation to a criminal matter 10 that concerns an offence-- 11 (i) against the laws of the foreign country that made the 12 request resulting in the proceeding; and 13 (ii) punishable by imprisonment of 3 years or more. 14 (h) a proceeding for the taking of evidence under the Extradition 15 Act 1988 (Cwlth), section 43 to the extent that the proceeding 16 relates to a relevant offence; 17 (i) a proceeding for the extradition of a person from another 18 jurisdiction to the ACT, to the extent that the proceeding 19 relates to a relevant offence; 20 (j) a proceeding under the International War Crimes Tribunals 21 Act 1995 (Cwlth), part 4.1; 22 (k) a proceeding of the International Criminal Court. 23 remote application for a warrant, means an application mentioned 24 in section 12 or section 20. 25 report, of a conversation or activity, includes a report of the 26 substance, meaning or purport of the conversation or activity. 27 retrieval warrant means a warrant issued under division 2.3 28 (Retrieval warrants). page 48 Crimes (Surveillance Devices) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 surveillance device means-- 2 (a) a data surveillance device, a listening device, an optical 3 surveillance device or a tracking device; or 4 (b) a device that is a combination of any 2 or more of the devices 5 mentioned in paragraph (a); or 6 (c) a device of a kind prescribed by regulation. 7 surveillance device warrant means a warrant issued under 8 division 2.2 (Surveillance device warrants) or under section 29 (3) 9 (Judge may approve emergency use of powers). 10 tracking device means an electronic device capable of being used to 11 work out or monitor the location of a person or an object or the 12 status of an object. 13 unsworn application for a warrant, means an application mentioned 14 in section 11 (4) (Application for surveillance device warrant) or 15 section 19 (4) (Application for retrieval warrant). 16 use, of a surveillance device, includes use of the device to record a 17 conversation or other activity. 18 vehicle includes aircraft and vessel. 19 warrant means surveillance device warrant or retrieval warrant. Crimes (Surveillance Devices) Bill 2010 page 49 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 Presentation speech Presentation speech made in the Legislative Assembly on 2010. 2 Notification Notified under the Legislation Act on 2010. 3 Republications of amended laws For the latest republication of amended laws, see www.legislation.act.gov.au. © Australian Capital Territory 2010 page 50 Crimes (Surveillance Devices) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au