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This is a Bill, not an Act. For current law, see the Acts databases.
2002-2003-2004
The Parliament
of the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Surveillance
Devices Bill (No. 2) 2004
No. ,
2004
(Attorney-General)
A
Bill for an Act to set out the powers of Commonwealth law enforcement agencies
with respect to surveillance devices, and for related
purposes
Contents
Australian Federal Police Act
1979 75
Criminal Code Act
1995 76
Customs Act
1901 76
Mutual Assistance in Criminal Matters Act
1987 77
A Bill for an Act to set out the powers of Commonwealth
law enforcement agencies with respect to surveillance devices, and for related
purposes
The Parliament of Australia enacts:
This Act may be cited as the Surveillance Devices Act (No. 2)
2004.
This Act commences on the day on which it receives the Royal
Assent.
The main purposes of this Bill are:
(a) to establish procedures for law enforcement officers to obtain
warrants, emergency authorisations and tracking device authorisations for the
installation and use of surveillance devices in relation to criminal
investigations and the location and safe recovery of children to whom recovery
orders relate; and
(b) to restrict the use, communication and publication of information that
is obtained through the use of surveillance devices or that is otherwise
connected with surveillance device operations; and
(c) to impose requirements for the secure storage and destruction of
records, and the making of reports, in connection with surveillance device
operations.
(1) Except where there is express provision to the contrary, this Act is
not intended to affect any other law of the Commonwealth, any law of a State, or
any law of a self-governing Territory, that prohibits or regulates the use of
surveillance devices.
(2) For the avoidance of doubt, except where express provision is made to
the contrary, nothing in this Act applies to any body, organisation or agency,
however described, that is involved in the collection of information or
intelligence.
(3) This Act is not intended to limit a discretion that a court
has:
(a) to admit or exclude evidence in any proceeding; or
(b) to stay criminal proceedings in the interests of justice.
(4) For the avoidance of doubt, it is intended that a warrant may be
issued, or an emergency authorisation or tracking device authorisation given,
under this Act for the installation, use, maintenance or retrieval of a
surveillance device in relation to a relevant offence or a recovery
order.
Each Act that is specified in a Schedule to this Act is amended or
repealed as set out in the applicable items in the Schedule concerned, and any
other item in a Schedule to this Act has effect according to its
terms.
(1) In this Act:
AFP employee has the same meaning as in the Australian
Federal Police Act 1979.
applicant for a warrant means the law enforcement officer who
applies, or on whose behalf an application is made, for the warrant.
appropriate authorising officer, in relation to a law
enforcement officer, means a person for the time being holding office or acting
as:
(a) if the law enforcement officer is a law enforcement officer belonging
to or seconded to the Australian Federal Police:
(i) the Commissioner of Police; or
(ii) a Deputy Commissioner of Police; or
(iii) a senior executive AFP employee who is authorised in writing by the
Commissioner for the purposes of this subparagraph; and
(b) if the law enforcement officer is a law enforcement officer belonging
to or seconded to the Australian Crime Commission:
(i) the Chief Executive Officer of the Commission; or
(ii) a member of the staff of the Commission who is an SES employee and
who is authorised in writing by the Chief Executive Officer of the Commission
for the purposes of this subparagraph; and
(c) if the law enforcement officer is a law enforcement officer belonging
to or seconded to the police force of a State or Territory:
(i) the Commissioner or the person holding equivalent rank; or
(ii) an Assistant Commissioner or a person holding equivalent rank;
or
(iii) a Superintendent or a person holding equivalent rank;
of the police force of that State or Territory; and
(d) if the law enforcement officer is a law enforcement officer belonging
to or seconded to the New South Wales Crime Commission:
(i) a member of the Commission; or
(ii) a member of the staff of the Commission (as defined by the New
South Wales Crime Commission Act 1985 of New South Wales) who occupies an
office or position at an equivalent level to that of a senior executive officer
within the meaning of the Public Sector Employment and Management Act
2002 of New South Wales and who is authorised in writing by the Commissioner
for the Commission for the purposes of this subparagraph; and
(e) if the law enforcement officer is a law enforcement officer belonging
to or seconded to the Independent Commission Against Corruption:
(i) the Commissioner for the Independent Commission Against Corruption;
or
(ii) an Assistant Commissioner for the Independent Commission Against
Corruption; or
(iii) an officer of the Commission (as defined by the Independent
Commission Against Corruption Act 1988 of New South Wales) who occupies an
office or position at an equivalent level to that of a senior executive officer
within the meaning of the Public Sector Employment and Management Act
2002 of New South Wales and who is authorised in writing by the Commissioner
for the Commission for the purposes of this subparagraph; and
(f) if the law enforcement officer is a law enforcement officer belonging
to or seconded to the Police Integrity Commission:
(i) the Commissioner for the Police Integrity Commission; or
(ii) an Assistant Commissioner for the Commission; or
(iii) a member of the staff of the Police Integrity Commission (as defined
by the Police Integrity Commission Act 1996 of New South Wales) who
occupies an office or position at an equivalent level to that of a senior
executive officer within the meaning of the Public Sector Employment and
Management Act 2002 of New South Wales and who is authorised in writing by
the Commissioner for the Commission for the purposes of this subparagraph;
and
(g) if the law enforcement officer is a law enforcement officer belonging
to or seconded to the Crime and Misconduct Commission—a commissioner of
the Crime and Misconduct Commission (as defined by the Crime and Misconduct
Act 2001 of Queensland); or
(h) if the law enforcement officer is a law enforcement officer belonging
to or seconded to the Corruption and Crime Commission—the Commissioner of
the Corruption and Crime Commission.
Australian Crime Commission means the Australian Crime
Commission established by the Australian Crime Commission Act
2002.
chief officer means the person for the time being holding
office or acting as:
(a) in relation to the Australian Federal Police—the Commissioner of
Police; and
(b) in relation to the Australian Crime Commission—the Chief
Executive Officer of the Australian Crime Commission; and
(c) in relation to the police force of a State or Territory—the
Commissioner of Police in that police force or the person holding equivalent
rank; and
(d) in the case of the New South Wales Crime Commission—the
Commissioner for the Commission; and
(e) in relation to the Independent Commission Against Corruption—the
Commissioner for the Commission; and
(f) in relation to the Police Integrity Commission—the Commissioner
for the Commission; and
(g) in relation to the Crime and Misconduct Commission—the
chairperson of the Commission; and
(h) in relation to the Corruption and Crime Commission—the
Commissioner of the Commission.
computer means any electronic device for storing or
processing information.
Corruption and Crime Commission means the Corruption and
Crime Commission established by the Corruption and Crime Commission Act
2003 of Western Australia.
Crime and Misconduct Commission means the Crime and
Misconduct Commission of Queensland.
data surveillance device means any device or program
capable of being used to record or monitor the input of information into, or the
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 the Commonwealth or of a State or Territory.
eligible Judge means an eligible Judge within the meaning of
section 12.
emergency authorisation means an emergency authorisation
given under Part 3.
enhancement equipment, in relation to a surveillance device,
means equipment capable of enhancing a signal, image or other information
obtained by the use of the surveillance device.
federal law enforcement officer means a law enforcement
officer referred to in paragraph (a) or (b) of the definition of law
enforcement officer.
Independent Commission Against Corruption means the
Independent Commission Against Corruption constituted by the Independent
Commission Against Corruption Act 1988 of New South Wales.
inspecting officer means a person appointed by the Ombudsman
under section 54 to be an inspecting officer.
install includes attach.
law enforcement agency means the following
agencies:
(a) the Australian Federal Police;
(b) the Australian Crime Commission;
(c) the police force of each State or Territory;
(d) the New South Wales Crime Commission;
(e) the Independent Commission Against Corruption;
(f) the Police Integrity Commission;
(g) the Crime and Misconduct Commission;
(h) the Corruption and Crime Commission.
law enforcement officer means:
(a) in relation to the Australian Federal Police—the Commissioner of
Police, a Deputy Commissioner of Police, any AFP employee, any special member or
any person who is seconded to the Australian Federal Police; or
(b) in relation to the Australian Crime Commission—the Chief
Executive Officer of the Australian Crime Commission or any other person who is
covered by a paragraph of the definition of member of the staff of the
ACC in section 4 of the Australian Crime Commission Act
2002; or
(c) an officer (however described) of the police force of a State or
Territory or any person who is seconded to that police force; or
(d) in relation to the New South Wales Crime Commission—a member of
the Commission, or a member of the staff of the Commission, as defined by the
New South Wales Crime Commission Act 1985 of New South Wales;
or
(e) in relation to the Independent Commission Against Corruption—an
officer of the Commission, as defined by the Independent Commission Against
Corruption Act 1988 of New South Wales; or
(f) in relation to the Police Integrity Commission—an officer of the
Commission as defined by the Police Integrity Commission Act 1996 of New
South Wales; or
(g) in relation to the Crime and Misconduct Commission—an authorised
commission officer as defined by the Crime and Misconduct Act 2001 of
Queensland; or
(h) in relation to the Corruption and Crime Commission—an officer of
the Commission as defined by the Corruption and Crime Commission Act 2003
of Western Australia.
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.
New South Wales Crime Commission means the New South Wales
Crime Commission constituted by the New South Wales Crime Commission Act
1985 of New South Wales.
nominated AAT member means a person in respect of whom a
nomination under section 13 is in force.
Ombudsman means the person holding office as the Commonwealth
Ombudsman under the Ombudsman Act 1976.
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.
Police Integrity Commission means the Police Integrity
Commission constituted by the Police Integrity Commission Act 1996 of New
South Wales.
premises includes:
(a) land; and
(b) a building or vehicle; and
(c) a part of a building or vehicle; and
(d) any place, whether built on or not;
whether within or beyond Australia.
prosecution, in relation to a criminal offence, includes all
stages in the prosecution of that offence, including a committal
hearing.
protected information has the meaning given in
section 44.
public officer means a person employed by, or holding an
office established by or under a law of, the Commonwealth, a State or a
Territory or a person employed by a public authority of the Commonwealth, a
State or a Territory.
record includes:
(a) an audio, visual or audio-visual record; and
(b) a record in digital form; and
(c) a documentary record prepared from a record referred to in
paragraph (a) or (b).
recovery order means:
(a) an order under section 67U of the Family Law Act 1975;
or
(b) an order for a warrant for the apprehension or detention of a child
under subregulation 15(1) or 25(4) of the Family Law (Child Abduction
Convention) Regulations 1986.
relevant offence means:
(a) an offence against the law of the Commonwealth that is punishable by a
maximum term of imprisonment of 3 years or more or for life; or
(b) an offence against a law of a State that has a federal aspect and that
is punishable by a maximum term of imprisonment of 3 years or more or for life;
or
(c) an offence against section 15 or 18 of the Financial
Transaction Reports Act 1988; or
(d) an offence against section 100, 100A, 101, or 101A of the
Fisheries Management Act 1991; or
(e) an offence that is prescribed by the regulations.
relevant proceeding means:
(a) the prosecution of a relevant offence; or
(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, and any related proceeding; or
(c) a proceeding for the protection of a child or intellectually impaired
person; or
(d) a proceeding concerning the validity of a warrant, an emergency
authorisation or a tracking device authorisation; or
(e) a disciplinary proceeding against a public officer; or
(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; or
(g) a proceeding under subsection 13(2) of the Mutual Assistance in
Criminal Matters Act 1987 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 punishable by a maximum term of imprisonment
of 3 years or more, by imprisonment for life or by the death penalty;
or
(h) the authorisation, under section 13A of the Mutual Assistance
in Criminal Matters Act 1987, of material to be made available to a foreign
country for use in the investigation into, or proceedings in relation to, an
offence against the laws of that country; or
(i) proceedings for an order under section 67X of the Family Law
Act 1975; or
(j) a proceeding for the taking of evidence under section 43 of the
Extradition Act 1988, in so far as the proceeding relates to a relevant
offence; or
(k) a proceeding under Division 1 of Part 4 of the
International War Crimes Tribunals Act 1995; or
(l) a proceeding of the International Criminal Court; or
(m) a proceeding by way of a bail application that relates to a
prosecution for a relevant offence; or
(n) a proceeding for review of a decision to refuse such a bail
application; or
(o) a proceeding for review of a decision to grant such a bail
application.
remote application for a warrant means an application
referred to in section 15 or 23.
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 2.
State offence that has a federal aspect has the meaning given
by section 7.
State or Territory law enforcement officer means a law
enforcement officer referred to in paragraph (c), (d), (e), (f), (g) or (h)
of the definition of law enforcement officer.
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 2 or under subsection 35(4) or (5).
sworn includes affirmed.
tracking device means any electronic device capable of being
used to determine or monitor the location of a person or an object or the status
of an object.
tracking device authorisation means a permission given under
section 39 by an appropriate authorising officer for a law enforcement
officer to use or retrieve a tracking device without a warrant.
unsworn application for a warrant means an application
referred to in subsections 14(6) and (7) or 22(4) and (5).
use of a surveillance device includes use of the device to
record a conversation or other activity.
vehicle includes aircraft and vessel.
warrant means surveillance device warrant or retrieval
warrant.
(2) In this Act, a reference to the law enforcement officer primarily
responsible for executing a warrant, emergency authorisation or tracking device
authorisation is, subject to subsection (3), a reference to:
(a) the person named in the warrant or authorisation as such a
person; or
(b) if there is no such person named—the person nominated as such a
person by the chief officer of the agency concerned;
whether or not that person is physically present for any step in the
execution of the warrant or authorisation.
(3) If the chief officer of a law enforcement agency becomes satisfied
that a law enforcement officer of the agency who is, under subsection (2)
or under a previous operation of this subsection, the law enforcement officer
primarily responsible for executing a warrant, emergency authorisation or
tracking device authorisation, ceases, for any reason, to have responsibility
for executing the warrant or authorisation:
(a) the chief officer may, by instrument in writing, nominate another
person as the law enforcement officer primarily responsible for executing the
warrant or authorisation; and
(b) with effect from the execution of the instrument or such later time as
is specified in the instrument, that other person becomes the law enforcement
officer primarily responsible for executing the warrant or
authorisation.
(4) In this Act:
(a) a reference to a person who belongs or is seconded to a law
enforcement agency, in the case of the Australian Crime Commission, is a
reference to any person who is covered by a paragraph of the definition of
member of the staff of the ACC in section 4 of the
Australian Crime Commission Act 2002; and
(b) a reference to a person who belongs or is seconded to the Australian
Crime Commission is to be similarly construed.
An offence against a law of a State is taken, for the purposes of this
Act, to be a State offence that has a federal aspect:
(a) in a case where the offence is being investigated by the Australian
Federal Police—if it would be taken to be a State offence that has a
federal aspect under section 4AA of the Australian Federal Police Act
1979; and
(b) in a case where the offence is being investigated by the Australian
Crime Commission—if it would be taken to be a State offence that has a
federal aspect under section 4A of the Australian Crime Commission Act
2002; and
(c) in any other case—if it would be taken to be a State offence
that has a federal aspect if either of the sections referred to in
paragraphs (a) and (b) were to apply.
This Act extends to every external Territory.
(1) This Act binds the Crown in each of its capacities.
(2) This Act does not make the Crown liable to be prosecuted for an
offence.
(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:
(a) in respect of more than one kind of surveillance device; and
(b) in respect of more than one surveillance device of any particular
kind.
Any warrant under this Part may be issued by an eligible Judge or by a
nominated AAT member.
(1) In this section, unless the contrary intention appears:
eligible Judge means a person 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 a court created by the
Parliament.
(2) A Judge may, by writing, consent to be declared an eligible Judge by
the Minister under subsection (3).
(3) The Minister may, by writing, declare Judges in relation to whom
consents are in force under subsection (2) to be eligible Judges for the
purposes of this Act.
(4) Any function or power conferred on the Judge under this Act is so
conferred only in a personal capacity and not as a court or a member of a
court.
(5) An eligible Judge has, in relation to the performance or exercise of a
function or power conferred on an eligible Judge by this Act, the same
protection and immunity as a Justice of the High Court has in relation to
proceedings in the High Court.
(1) The Minister may, by writing, nominate a person who holds one of the
following appointments to the Administrative Appeals Tribunal to issue warrants
under this Part:
(a) Deputy President;
(b) full-time senior member;
(c) part-time senior member;
(d) member.
(2) Despite subsection (1), the Minister must not nominate a person
who holds an appointment as a part-time senior member or a member of the
Tribunal unless the person:
(a) is enrolled as a legal practitioner of the High Court, of another
federal court or of the Supreme Court of a State or of the Australian Capital
Territory; and
(b) has been so enrolled for not less than 5 years.
(3) A nomination ceases to have effect if:
(a) the nominated AAT member ceases to hold an appointment described in
subsection (1); or
(b) the Minister, by writing, withdraws the nomination.
(4) A nominated AAT member has, in relation to the performance or exercise
of a function or power conferred on a nominated AAT member by this Act, the same
protection and immunity as a Justice of the High Court has in relation to
proceedings in the High Court.
(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 suspects on reasonable grounds that:
(a) one or more relevant offences have been, are being, are about to be,
or are likely to be, committed; and
(b) an investigation into those offences is being, will be, or is likely
to be, conducted; and
(c) the use of a surveillance device is necessary in the course of that
investigation for the purpose of enabling evidence to be obtained of the
commission of the relevant offences or the identity or location of the
offenders.
(2) If the application is being made by or on behalf of a State or
Territory law enforcement officer, the reference in subsection (1) to a
relevant offence does not include a reference to a State offence that has a
federal aspect.
(3) A law enforcement officer (or another person on his or her behalf) may
apply for the issue of a surveillance device warrant if:
(a) a recovery order is in force; and
(b) the law enforcement officer suspects on reasonable grounds that the
use of a surveillance device may assist in the location and safe recovery of the
child to whom the recovery order relates.
(4) The application under subsection (1) or (3) may be made to an
eligible Judge or to a nominated AAT member.
(5) 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 or devices 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.
(6) If a law enforcement officer believes that:
(a) the immediate use of a surveillance device is necessary for a purpose
referred to in paragraph (1)(c) or may assist as described in
paragraph (3)(b); 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.
(7) If subsection (6) applies, the applicant must:
(a) provide as much information as the eligible Judge or nominated AAT
member considers is reasonably practicable in the circumstances; and
(b) not later than 72 hours after the making of the application, send a
duly sworn affidavit to the Judge or member, whether or not a warrant has been
issued.
(1) If a law enforcement officer believes that it is impracticable for an
application for a surveillance device warrant to be made in person, the
application may be made under section 14 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 to the nominated AAT member who is to
determine the application.
(1) An eligible Judge or a nominated AAT member may issue a surveillance
device warrant if satisfied:
(a) in the case of a warrant sought in relation to a relevant
offence—that there are reasonable grounds for the suspicion founding the
application for the warrant; and
(b) in the case of a warrant sought in relation to a recovery
order—that such an order is in force and that there are reasonable grounds
for the suspicion founding the application for the warrant; and
(c) in the case of an unsworn application—that it would have been
impracticable for an affidavit to have been sworn or prepared before the
application was made; and
(d) 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 surveillance device warrant should be issued,
the eligible Judge or nominated AAT member must have regard to:
(a) in the case of a warrant sought in relation to a relevant
offence—the nature and gravity of the alleged offence; and
(b) in the case of a warrant sought to assist in the location and safe
recovery of a child to whom a recovery order relates—the circumstances
that gave rise to the making of the order; and
(c) the extent to which the privacy of any person is likely to be
affected; and
(d) the existence of any alternative means of obtaining the evidence or
information sought to be obtained; and
(e) the likely evidentiary or intelligence value of any evidence or
information sought to be obtained; and
(f) any previous warrant sought or issued under this Division in
connection with the same alleged offence or the same recovery order.
(1) A surveillance device warrant must:
(a) state that the eligible Judge or nominated AAT member issuing the
warrant is satisfied of the matters referred to in subsection 16(1) and has had
regard to the matters referred to in subsection 16(2); and
(b) specify:
(i) the name of the applicant; and
(ii) if the warrant relates to one or more alleged relevant
offences—the alleged offences in respect of which the warrant is issued;
and
(iii) if the warrant relates to a recovery order—the date the order
was made and the name of the child to whom the order relates; and
(iv) the date the warrant is issued; and
(v) the surveillance device or devices authorised to be used;
and
(vi) if the warrant authorises the use of a surveillance device on
premises—the premises on which the use of the surveillance device is
authorised; and
(vii) 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
(viii) if the warrant authorises the use of a surveillance device in
respect of the conversations, activities or location of a person—the name
of the person (if known) or the fact that the person’s identity is
unknown; 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 may be entered, or a
surveillance device may be used, under the warrant.
(2) In the case of a warrant authorising the use of a surveillance device
on premises that are vehicles, the warrant need only specify the class of
vehicle in relation to which the use of the surveillance device is
authorised.
(3) A warrant must be signed by the person issuing it and include his or
her name.
(4) As soon as practicable after completing and signing a warrant issued
on a remote application, the person issuing it must:
(a) 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
(b) give the warrant to the applicant while retaining a copy of the
warrant for the person’s own record.
(1) A surveillance device warrant (subject to any conditions specified in
it) may authorise one or more of the following:
(a) the use of a surveillance device on specified premises;
(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 location of a specified person or a person whose identity is
unknown.
(2) A surveillance device warrant authorises:
(a) for a warrant of a kind referred to in
paragraph (1)(a):
(i) the installation, use and maintenance of a surveillance device of the
kind specified in the warrant on the specified premises; and
(ii) the entry, by force if necessary, onto the premises, and onto 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
paragraph (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 any premises where the object,
or an object of the class, is reasonably believed to be or is likely to be, and
onto 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
paragraph (1)(c):
(i) the installation, use and maintenance of a surveillance device of the
kind specified in the warrant, on premises where the person is reasonably
believed to be or likely to be; and
(ii) the entry, by force if necessary, onto the premises, or other
premises adjoining or providing access to those premises, for any of the
purposes referred to in subparagraph (i) or subsection (3).
(3) Each surveillance device warrant also authorises:
(a) the retrieval of the surveillance device; and
(b) the installation, use, maintenance and retrieval of enhancement
equipment in relation to the surveillance device; and
(c) the temporary removal of an object or vehicle from premises for the
installation, maintenance or retrieval of the surveillance device or enhancement
equipment and the return of the object or vehicle to the premises; and
(d) the breaking open of anything for the installation, maintenance or
retrieval of the surveillance device or enhancement equipment; and
(e) the connection of the surveillance device or enhancement equipment to
any source of electricity and the use of electricity from that source to operate
the device or equipment; and
(f) the connection of the surveillance device or enhancement equipment to
any object or system that may be used to transmit information in any form and
the use of that object or system in connection with the operation of the device
or equipment; and
(g) the provision of assistance or technical expertise to the law
enforcement officer primarily responsible for the execution of the warrant in
the installation, use, maintenance or retrieval of the surveillance device or
enhancement equipment.
(4) 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.
(5) A surveillance device warrant may authorise the interference with
property of a person who is not the subject of the investigation in respect of
which the warrant was issued but, if the interference would be on premises not
specified in the warrant, only if the person issuing the warrant is satisfied
that it is necessary to do so in order to give effect to the warrant.
(6) A law enforcement officer may use a surveillance device under a
warrant only in the performance of his or her duty.
(7) Nothing in this section authorises the doing of anything for which a
warrant would be required under the Telecommunications (Interception) Act
1979.
(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 the 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 an eligible Judge or to a nominated
AAT member and must be accompanied by the original warrant.
(3) Sections 14 and 15 apply, with any necessary changes, to an
application under this section as if it were an application for the
warrant.
(4) The Judge or member may grant an application if satisfied that the
matters referred to in subsection 16(1) still exist, having regard to the
matters in subsection 16(2).
(5) If the Judge or member grants the application, the Judge or member
must endorse the new expiry date or the other varied term on the original
warrant.
(6) An application may be made under this section more than
once.
(1) A surveillance device warrant may, by instrument in writing, be
revoked by an eligible Judge or nominated AAT member on his or her own
initiative at any time before the expiration of the period of validity specified
in the warrant.
(2) If the circumstances set out in paragraphs 21(2)(a) and (b) or
21(3)(a) and (b) apply in relation to a surveillance device warrant—the
chief officer of the law enforcement agency to which the law enforcement officer
to whom the warrant was issued belongs or is seconded must, by instrument in
writing, revoke the warrant.
(3) The instrument revoking a warrant must be signed by the eligible
Judge, the nominated AAT member or the chief officer of the law enforcement
agency, as the case requires.
(4) If an eligible Judge or nominated AAT member revokes a warrant, he or
she must give a copy of the instrument of revocation to the chief officer of the
law enforcement agency to which the law enforcement officer to whom the warrant
was issued belongs or is seconded.
(5) If:
(a) an eligible Judge or nominated AAT member revokes a warrant;
and
(b) at the time of the revocation, a law enforcement officer is executing
the warrant;
the law enforcement officer is not subject to any civil or criminal
liability for any act done in the proper execution of that warrant before the
officer is made aware of the revocation.
(1) This section applies if a surveillance device warrant is issued to a
law enforcement officer.
(2) If:
(a) the surveillance device warrant has been sought by or on behalf of a
law enforcement officer in relation to a relevant offence; and
(b) the chief officer of the law enforcement agency to which the law
enforcement officer belongs or is seconded is satisfied that the use of a
surveillance device under the warrant sought 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, in addition to revoking the warrant under
section 20, take the steps necessary to ensure that use of the surveillance
device authorised by the warrant is discontinued.
(3) If:
(a) a surveillance device warrant has been sought by or on behalf of a law
enforcement officer in relation to a recovery order; and
(b) the chief officer of the law enforcement agency to which the law
enforcement officer belongs or is seconded is satisfied that the use of a
surveillance device is no longer required for the purpose of locating and safely
recovering the child to whom the recovery order relates;
the chief officer must, in addition to revoking the warrant under
section 20, take the steps necessary to ensure that use of the surveillance
device authorised by the warrant is discontinued.
(4) If the chief officer of a law enforcement agency is notified that a
warrant has been revoked by an eligible Judge or a nominated AAT member under
section 20, he or she must take the steps necessary to ensure that use of
the surveillance device authorised by the warrant is discontinued as soon as
practicable.
(5) If the law enforcement officer to whom the warrant is issued, or who
is primarily responsible for executing the warrant, believes that use of a
surveillance device under the warrant is no longer necessary for the
purpose:
(a) if the warrant was issued in relation to a relevant offence—of
enabling evidence to be obtained of the commission of the relevant offence or
the identity or location of the offender; or
(b) if the warrant was issued in relation to a recovery order—of
enabling the location and safe recovery of the child to whom the order
relates;
he or she must immediately inform the chief officer of the law enforcement
agency to which he or she belongs or is seconded.
(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 an object, under a
surveillance device warrant and that the law enforcement officer suspects on
reasonable grounds is still on those premises or in or on that object, or on
other premises or in or on another object.
(2) The application may be made to an eligible Judge or to a nominated AAT
member.
(3) Subject to this section, the application must be supported by an
affidavit setting out the grounds on which the retrieval 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
the application for a retrieval warrant is made;
the application 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 nominated AAT
member 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 nominated AAT member who
determined the application, whether or not a warrant has been issued.
(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 22 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 nominated AAT member who is to
determine the application.
(1) An eligible Judge or nominated AAT member may issue a retrieval
warrant if the Judge or member is satisfied:
(a) that there are reasonable grounds for the suspicion founding the
application for the warrant; and
(b) in the case of an unsworn application—that it would have been
impracticable for an affidavit to have been sworn or prepared 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 nominated AAT member 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.
(1) A retrieval warrant must:
(a) state that the eligible Judge or nominated AAT member is satisfied of
the matters referred to in subsection 24(1) and has had regard to the matters
referred to in subsection 24(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 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 primarily responsible for
executing the warrant; and
(vii) any conditions subject to which premises may be entered under the
warrant.
(2) A warrant must be signed by the person issuing it and include his or
her name.
(3) As soon as practicable after completing and signing a warrant issued
on a remote application, the person issuing it must:
(a) 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
(b) give the warrant to the applicant while retaining a copy of the
warrant for the person’s own record.
(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 the premises where the
surveillance device is reasonably believed to be, and onto other premises
adjoining or providing access to those premises, for the purpose of retrieving
the device and equipment; and
(c) the breaking open of any thing for the purpose of retrieving the
device and equipment; and
(d) if the device or equipment is installed on or in an object or
vehicle—the temporary removal of the object or vehicle from any place
where it is situated for the purpose of retrieving the device and equipment and
returning the object or vehicle to that place; and
(e) 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) If the retrieval warrant authorises the retrieval of a tracking
device, the warrant also authorises the use of the tracking 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) 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
but cannot authorise the use, for any purpose, of the surveillance device
specified in the warrant.
(1) A retrieval warrant may, by instrument in writing, be revoked by an
eligible Judge or a nominated AAT member on his or her own initiative at any
time before the expiration of the period of validity specified in the
warrant.
(2) If the chief officer of the law enforcement agency to which the law
enforcement officer to whom a retrieval warrant was issued belongs or is
seconded is satisfied that the grounds for issue of the retrieval warrant no
longer exist—the chief officer must, by instrument in writing, revoke the
warrant.
(3) The instrument revoking a warrant must be signed by the eligible
Judge, the nominated AAT member or the chief officer of the law enforcement
agency, as the case requires.
(4) If an eligible Judge or nominated AAT member revokes a warrant, he or
she must give a copy of the instrument of revocation to the chief officer of the
law enforcement agency to which the law enforcement officer to whom the warrant
was issued belongs or is seconded.
(5) 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.
(1) A law enforcement officer may apply to an appropriate authorising
officer for an emergency authorisation for the use of a surveillance device if,
in the course of an investigation of a relevant offence, the law enforcement
officer reasonably suspects that:
(a) an imminent risk of serious violence to a person or substantial damage
to property exists; and
(b) the use of a surveillance device is immediately necessary for the
purpose of dealing with that risk; 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) If the application is being made by or on behalf of a State or
Territory law enforcement officer, the reference in that subsection to a
relevant offence does not include a reference to a State offence that has a
federal aspect.
(3) The application may be made orally, in writing or by telephone, fax,
e-mail or any other means of communication.
(4) The appropriate authorising officer may give the emergency
authorisation if satisfied that there are reasonable grounds for the suspicion
founding the application.
(1) A law enforcement officer may apply to an appropriate authorising
officer for an emergency authorisation for the use of a surveillance device
if:
(a) a recovery order is in force; and
(b) the law enforcement officer reasonably suspects that:
(i) the circumstances are so urgent as to warrant the immediate use of a
surveillance device; and
(ii) it is not practicable in the circumstances to apply for a
surveillance device warrant.
(2) The application may be made orally, in writing or by telephone, fax,
e-mail or any other means of communication.
(3) The appropriate authorising officer may give the emergency
authorisation if satisfied that the recovery order is in force and that there
are reasonable grounds for the suspicion founding the application.
(1) If:
(a) a law enforcement officer is conducting an investigation
into:
(i) an offence against section 233B of the Customs Act 1901;
or
(ii) an offence against section 233BAA of the Customs Act 1901
(with respect to goods listed in Schedule 4 to the Customs (Prohibited
Imports) Regulations 1956 or in Schedule 8 or 9 to the Customs
(Prohibited Exports) Regulations 1958); or
(iii) an offence against Part IIIA of the Crimes Act 1914;
or
(iv) an offence under the Crimes (Traffic in Narcotic Drugs and
Psychotropic Substances) Act 1990; or
(v) an offence under Division 72 of the Criminal Code;
or
(vi) an offence against section 73.2, 80.1 or 91.1 of the Criminal
Code; or
(vii) an offence under Division 101, 102 or 103 of the Criminal
Code; or
(viii) an offence under Division 270 of the Criminal
Code;
or more than one offence; and
(b) the law enforcement officer reasonably suspects that:
(i) the use of the surveillance device is immediately necessary to prevent
the loss of any evidence relevant to that investigation; and
(ii) the circumstances are so serious and the matter is of such urgency
that the use of the surveillance device is warranted; and
(iii) it is not practicable in the circumstances to apply for a
surveillance device warrant;
the law enforcement officer may apply to an appropriate authorising officer
for an emergency authorisation for the use of a surveillance device.
(2) The application may be made orally, in writing or by telephone, fax,
e-mail or any other means of communication.
(3) The appropriate authorising officer may give the emergency
authorisation if satisfied that:
(a) an investigation is being conducted into an offence referred to in
paragraph (1)(a); and
(b) there are reasonable grounds for the suspicion referred to in
paragraph (1)(b).
As soon as practicable after an appropriate authorising officer gives an
emergency authorisation, the officer must make a written record of the giving of
that authorisation, including in the record:
(a) the name of the applicant for the authorisation; and
(b) the date and time the authorisation was given; and
(c) the nature of the authorisation given.
(1) An emergency authorisation may authorise the law enforcement officer
to whom it is given:
(a) to use more than one kind of surveillance device; and
(b) to use more than one surveillance device of any particular
kind.
(2) An emergency authorisation may authorise anything that a surveillance
device warrant may authorise.
(3) A law enforcement officer may use a surveillance device under an
emergency authorisation only if he or she is acting in the performance of his or
her duty.
(4) Nothing in this Part authorises the doing of anything for which a
warrant would be required under the Telecommunications (Interception) Act
1979.
(1) Within 48 hours after giving an emergency authorisation to a law
enforcement officer, the appropriate authorising officer who gave the
authorisation (or another person on that appropriate authorising officer’s
behalf) must apply to an eligible Judge or to a nominated AAT member for
approval of the giving of the emergency authorisation.
(2) The application:
(a) must specify:
(i) the name of the applicant for the approval; and
(ii) the kind or kinds of surveillance device to which the emergency
authorisation relates and, if a warrant is sought, the nature and duration of
the warrant; and
(b) must be supported by an affidavit setting out the grounds on which the
approval (and warrant, if any) is sought; and
(c) must be accompanied by a copy of the written record made under
section 31 in relation to the emergency authorisation.
(3) The eligible Judge or nominated AAT member may refuse to consider the
application until the applicant gives the Judge or member all the information
the Judge or member requires about the application in the way the Judge or
member requires.
(1) Before deciding an application for approval of the giving of an
emergency authorisation given under section 28, the eligible Judge or
nominated AAT member considering the application 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 serious violence to a person or substantial
damage to property;
(b) the extent to which issuing a surveillance device warrant would have
helped reduce or avoid the risk;
(c) the extent to which law enforcement officers could have used
alternative methods of investigation to help reduce or avoid the risk;
(d) how much the use of alternative methods of investigation could have
helped reduce or avoid the risk;
(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 of the giving of an
emergency authorisation given under section 29, the eligible Judge or
nominated AAT member considering the application must, in particular, and being
mindful of the intrusive nature of using a surveillance device, consider the
following:
(a) the urgency of enforcing the recovery order;
(b) the extent to which use of a surveillance device would assist in the
location and safe recovery of the child to whom the recovery order
relates;
(c) the extent to which law enforcement officers could have used
alternative methods to assist in the location and safe recovery of the
child;
(d) how much the use of alternative methods to assist in the location and
safe recovery of the child might have prejudiced the effective enforcement of
the recovery order;
(e) whether or not it was practicable in the circumstances to apply for a
surveillance device warrant.
(3) Before deciding an application for approval of the giving of an
emergency authorisation given under section 30, the eligible Judge or
nominated AAT member 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 extent to which law enforcement officers could have used
alternative methods of investigation to help reduce or avoid the risk;
(d) how much the use of alternative methods of investigation could have
helped reduce or avoid the risk;
(e) whether or not it was practicable in the circumstances to apply for a
surveillance device warrant.
(1) After considering an application for approval of the giving of an
emergency authorisation under section 28, the eligible Judge or nominated
AAT member may approve the application if satisfied that there were reasonable
grounds to suspect that:
(a) there was a risk of serious violence to a person or substantial damage
to property; and
(b) using a surveillance device may have helped reduce the risk;
and
(c) it was not practicable in the circumstances to apply for a
surveillance device warrant.
(2) After considering an application for approval of the giving of an
emergency authorisation under section 29 in relation to a recovery order,
the eligible Judge or nominated AAT member may approve the application if
satisfied that:
(a) the recovery order was in force at the time the emergency
authorisation was given; and
(b) there were reasonable grounds to suspect that:
(i) the enforcement of the recovery order was urgent; and
(ii) using a surveillance device may have assisted in the prompt location
and safe recovery of the child to whom the order relates; and
(iii) it was not practicable in the circumstances to apply for a
surveillance device warrant.
(3) After considering an application for approval of the giving of an
emergency authorisation under section 30, the eligible Judge or nominated
AAT member may approve the application if satisfied that:
(a) there were reasonable grounds to suspect that:
(i) there was a risk of loss of evidence; and
(ii) using the surveillance device may have helped reduce the risk;
and
(b) it was not practicable in the circumstances to apply for a
surveillance device warrant.
(4) If, under subsection (1), (2) or (3), the eligible Judge or
nominated AAT member approves the giving of an emergency authorisation, the
Judge or member may:
(a) unless paragraph (b) applies—issue a surveillance device
warrant for the continued use of the surveillance device as if the application
for the approval were an application for a surveillance device warrant under
Division 2 of Part 2; or
(b) if the Judge or member is satisfied that since the application for the
emergency authorisation the activity that required surveillance has
ceased—order that the use of the surveillance device cease.
(5) If, under subsection (1), (2) or (3), the eligible Judge or
nominated AAT member does not approve the giving of an emergency authorisation,
the Judge or member may:
(a) order that the use of the surveillance device cease; or
(b) if the Judge or member is of the view that although the situation did
not warrant the emergency authorisation at the time that authorisation was
given, the use of a surveillance device warrant under Division 2 of
Part 2 is currently justified—issue a surveillance device warrant for
the subsequent use of such a device as if the application for the approval were
an application for a surveillance device warrant under Division 2 of
Part 2.
(6) In any case, the eligible Judge or nominated AAT member may order that
any information obtained from or relating to the exercise of powers under the
emergency authorisation, or any record of that information, be dealt with in a
manner specified in the order, not being a manner that involves the destruction
of that information.
If the giving of an emergency authorisation is approved under
section 35, any evidence obtained because of the exercise of powers under
that authorisation is not inadmissible in any proceeding only because the
evidence was obtained before the approval.
(1) A federal law enforcement officer acting in the course of his or her
duties may, without warrant, use an optical surveillance device for any
purpose:
(a) if the officer belongs or is seconded to the Australian Federal
Police—that is within the functions of the Australian Federal Police set
out in section 8 of the Australian Federal Police Act 1979;
or
(b) if the officer belongs or is seconded to the Australian Crime
Commission—that is within the functions of the Commission set out in
section 7A of the Australian Crime Commission Act 1979;
if the use of that device does not involve:
(c) entry onto premises without permission; or
(d) interference without permission with any vehicle or thing.
(2) A State or Territory law enforcement officer acting in the course of
his or her duties may, without warrant, use an optical surveillance device in
the investigation of a relevant offence (other than a State offence that has a
federal aspect) if the use of that device does not involve:
(a) entry onto premises without permission; or
(b) interference without permission with any vehicle or thing.
(3) A State or Territory law enforcement officer acting in the course of
his or her duties may, without warrant, use an optical surveillance device in
the location and safe recovery of a child to whom a recovery order relates if
the use of that device does not involve:
(a) a trespass on premises; or
(b) interference without permission with any vehicle or thing.
(1) A federal law enforcement officer acting in the course of his or her
duties may, without warrant, use a surveillance device for any purpose involving
listening to, or recording, words spoken by a person:
(a) if the officer belongs or is seconded to the Australian Federal
Police—that is within the functions of the Australian Federal Police set
out in section 8 of the Australian Federal Police Act 1979;
or
(b) if the officer belongs or is seconded to the Australian Crime
Commission—that is within the functions of the Commission set out in
section 7A of the Australian Crime Commission Act 1979;
if the use of that device for that listening or recording purpose is
confined to circumstances where:
(c) the law enforcement officer is the speaker of the words or is a
person, or is included in a class or group of persons, by whom the speaker of
the words intends, or should reasonably expect, the words to be heard;
or
(d) the law enforcement officer listens to or records the words with the
consent, express or implied, of a person who is permitted to listen to or record
the words by paragraph (c) or by subsection (4).
(2) A State or Territory law enforcement officer acting in the course of
his or her duties and in the investigation of a relevant offence (other than a
State offence that has a federal aspect) may, without warrant, use a
surveillance device for any purpose involving listening to, or recording, words
spoken by a person if the use of that device for that listening or recording
purpose is confined to circumstances where:
(a) the State or Territory law enforcement officer is the speaker of the
words or is a person, or is included in a class or group of persons, by whom the
speaker of the words intends, or should reasonably expect, the words to be
heard; or
(b) the State or Territory law enforcement officer listens to or records
the words with the consent, express or implied, of a person who is permitted to
listen to or record the words:
(i) by paragraph (a); or
(ii) so far as subsection (5) applies in relation to that
investigation—by that subsection.
(3) A State or Territory law enforcement officer acting in the course of
his or her duties and in relation to the location and safe recovery of a child
to whom a recovery order relates may, without warrant, use a surveillance device
for any purpose involving listening to, or recording, words spoken by a person
if the use of that device for that listening or recording purpose is confined to
circumstances where:
(a) the State or Territory law enforcement officer is the speaker of the
words or is a person, or is included in a class or group of persons, by whom the
speaker of the words intends, or should reasonably expect, the words to be
heard; or
(b) the State or Territory law enforcement officer listens to or records
the words with the consent, express or implied, of a person who is permitted to
listen to or record the words:
(i) by paragraph (a); or
(ii) so far as subsection (5) applies in relation to the location and
safe recovery of the child—by that subsection.
(4) A person (other than a federal law enforcement officer) who is
assisting a federal law enforcement officer acting in the course of his or her
duties may, without warrant, use a surveillance device for any
purpose:
(a) that involves listening to, or recording, words spoken by a person;
and
(b) that is referred to in subsection (1);
if the first-mentioned person is the speaker of the words or is a person,
or is included in a class or group of persons, by whom the speaker of the words
intends, or should reasonably expect, the words to be heard.
(5) A person (other than a State or Territory law enforcement officer) who
is assisting a State or Territory law enforcement officer who is acting in the
course of his or her duties in relation to:
(a) the investigation of a relevant offence (other than a State offence
that has a federal aspect); or
(b) the location and safe recovery of a child to whom a recovery order
relates;
may, without warrant, use a surveillance device for any purpose that
involves listening to, or recording, words spoken by a person if the
first-mentioned person is the speaker of the words or is a person, or is
included in a class or group of persons, by whom the speaker of the words
intends, or should reasonably expect, the words to be heard.
(1) A law enforcement officer may, with the written permission of an
appropriate authorising officer, use a tracking device without a warrant in the
investigation of a relevant offence.
(2) If the law enforcement officer referred to in subsection (1) is a
State or Territory law enforcement officer, the reference in subsection (1)
to a relevant offence does not include a reference to a State offence that has a
federal aspect.
(3) A law enforcement officer may, with the written permission of an
appropriate authorising officer, use a tracking device without a warrant in the
location and safe recovery of a child to whom a recovery order
relates.
(4) Subsections (1) and (3) have effect despite any other law of the
Commonwealth or of a State or self-governing Territory (including any principle
of the common law) forbidding the use of such a device without a
warrant.
(5) A tracking device authorisation given under subsection (1) or (3)
may authorise the law enforcement officer to use more than one tracking
device.
(6) If an appropriate authorising officer gives a tracking device
authorisation under this section, an appropriate authorising officer may also
authorise the retrieval, without a warrant, of a tracking device to which the
tracking device authorisation relates.
(7) A tracking device authorisation given under subsection (1) or (3)
and an authorisation for the retrieval of a tracking device given under
subsection (6) must indicate the period, not exceeding 90 days, for which
the authorisation remains in force.
(8) An appropriate authorising officer must not give permission under this
section for the use, installation or retrieval of a tracking device if the
installation of the device, or its retrieval, involves entry onto premises
without permission or an interference with the interior of a vehicle without
permission.
(9) For the purposes of obtaining the permission of an appropriate
authorising officer, the law enforcement officer wishing to use that
device:
(a) must apply, orally or in writing, to the appropriate authorising
officer; and
(b) must address, in that application, the matters that would be required
to be addressed if the law enforcement officer were making an application for a
surveillance device warrant or a retrieval warrant, as the case
requires.
(10) Subsection 18(1), subparagraphs 18(2)(a)(i), 18(2)(b)(i) and
18(2)(c)(i), paragraphs 18(3)(a), (b) and (g) and subsections 18(4), (6) and (7)
apply in relation to a tracking device authorisation authorising the use of a
tracking device as if:
(a) references in those provisions to a surveillance device warrant were
references to a tracking device authorisation authorising the use of a tracking
device; and
(b) references in those provisions to a surveillance device were
references to a tracking device.
(11) Paragraphs 26(1)(a), (c), (d) and (e) and subsections 26(2) and (3)
apply in relation to a tracking device authorisation authorising the retrieval
of a tracking device as if:
(a) references in those provisions to a retrieval warrant were references
to a tracking device authorisation authorising the retrieval of a tracking
device; and
(b) references in those provisions to a surveillance device were
references to a tracking device.
(12) A law enforcement officer may use a tracking device authorisation
only if he or she is acting in the performance of his or her duty.
As soon as practicable after an appropriate authorising officer gives a
tracking device authorisation, the officer must make a written record of the
giving of that authorisation, including in the record:
(a) the name of the applicant for the authorisation; and
(b) the date and time the authorisation was given; and
(c) if the authorisation authorises the use of a tracking device in
relation to the investigation of an alleged relevant offence or
offences—the alleged offence or offences in respect of which the
authorisation is given; and
(d) if the authorisation authorises the use of a tracking device in
relation to a recovery order—the date the order was made and the name of
the child to whom the order relates; and
(e) if the authorisation authorises the use of a tracking device in or on
an object or class of object—the object or class of object in or on which
the use of the tracking device is authorised; and
(f) if the authorisation authorises the use of a tracking device on a
vehicle or class of vehicle—the vehicle or class of vehicle on which the
use of the tracking device is authorised; and
(g) if the authorisation authorises the use of a tracking device in
respect of the conversations, activities or geographical location of a
person—the name of the person (if known); and
(h) if the authorisation authorises the retrieval of a tracking
device—the premises or object from which the tracking device is to be
retrieved; and
(i) the name of the law enforcement officer primarily responsible for
executing the authorisation; and
(j) any conditions subject to which a tracking device may be used, under
the authorisation.
(1) In this Part:
appropriate consenting official, in relation to a foreign
country, means an official of that country having authority in
that country to give consent to the use of surveillance devices in that country
or on a vessel or aircraft registered under the laws of that country.
Australian fishing zone means the Australian fishing zone
within the meaning of the Fisheries Management Act 1991.
contiguous zone, in relation to Australia, has the same
meaning as in the Seas and Submerged Lands Act 1973.
territorial sea, in relation to Australia, has the same
meaning as in the Seas and Submerged Lands Act 1973.
(1) If, before the issue of a warrant in relation to the investigation of
a relevant offence on an application made by or on behalf of a federal law
enforcement officer, it becomes apparent to the applicant that there will be a
need for surveillance:
(a) in a foreign country; or
(b) on a vessel or aircraft that is registered under the law of a foreign
country and is in or above waters beyond the outer limits of the territorial sea
of Australia;
to assist in that investigation, the eligible Judge or nominated AAT member
considering the application for the warrant must not permit the warrant to
authorise that surveillance unless the Judge or member is satisfied that the
surveillance has been agreed to by an appropriate consenting official of the
foreign country.
(2) If:
(a) application is made under section 33 by an appropriate
authorising officer who is a federal law enforcement officer for approval of the
giving of an emergency authorisation relating to the investigation of a relevant
offence; and
(b) before the completion of consideration of that application, it becomes
apparent to the applicant that there will be a need for surveillance:
(i) in a foreign country; or
(ii) on a vessel or aircraft that is registered under the law of a foreign
country and is in or above waters beyond the outer limits of the territorial sea
of Australia;
to assist in the investigation to which the emergency authorisation
related;
the eligible Judge or nominated AAT member to whom the application was made
must not permit any warrant issued on consideration of that application to
authorise that surveillance unless the Judge or member is satisfied that the
surveillance has been agreed to by an appropriate consenting official of the
foreign country.
(3) If:
(a) a warrant has been issued in relation to the investigation of a
relevant offence on an application by or on behalf of a federal law enforcement
officer; and
(b) after the issue of the warrant it becomes apparent to the law
enforcement officer primarily responsible for executing the warrant that there
will be a need for surveillance:
(i) in a foreign country; or
(ii) on a vessel or aircraft that is registered under the law of a foreign
country and is in or above waters beyond the outer limits of the territorial sea
of Australia;
to assist in that investigation;
the warrant is taken to permit that surveillance if, and only if, the
surveillance has been agreed to by an appropriate consenting official of the
foreign country.
(4) Despite subsections (1), (2) and (3), if:
(a) a vessel that is registered under the law of a foreign country is in
waters beyond the outer limits of the territorial sea of Australia but not
beyond the outer limits of the contiguous zone of Australia; and
(b) the relevant offence in respect of which it becomes apparent that
surveillance on the vessel will be required is an offence relating to the
customs, fiscal, immigration or sanitary laws of Australia;
there is no requirement for the agreement of an appropriate consenting
official of the foreign country concerned in relation to that surveillance while
the vessel is in such waters.
(5) Despite subsections (1), (2) and (3), if:
(a) a vessel that is registered under the law of a foreign country is in
waters beyond the outer limits of the territorial sea of Australia but not
beyond the outer limits of the Australian fishing zone; and
(b) the relevant offence in respect of which it becomes apparent that
surveillance on the vessel will be required is an offence against
section 100, 100A, 101 or 101A of the Fisheries Management Act
1991;
there is no requirement for the agreement of an appropriate consenting
official of the foreign country concerned in relation to that surveillance while
the vessel is in those waters.
(6) As soon as practicable after the commencement of surveillance under
the authority of a warrant:
(a) in a foreign country; or
(b) in circumstances where consent to that surveillance is
required—on a vessel or aircraft that is registered under the law of a
foreign country;
the chief officer of the law enforcement agency to which the law
enforcement officer who applied for the warrant belongs or is seconded must give
the Minister evidence in writing that the surveillance has been agreed to by an
appropriate consenting official of the foreign country.
(7) If a vessel or aircraft that is registered under the laws of a foreign
country is in or above the territorial sea of another foreign country,
subsections (1), (2) and (3) have effect as if the reference to an
appropriate consenting official of the foreign country were a reference to an
appropriate consenting official of each foreign country concerned.
(8) For the avoidance of doubt, there is no requirement for the agreement
of an appropriate consenting official of the foreign country to the surveillance
under the authority of a warrant of a vessel or aircraft of a foreign country
that is in Australia or in or above waters within the outer limits of the
territorial sea of Australia.
Evidence obtained from surveillance undertaken in a foreign country in
accordance with subsection 42(1), (2) or (3) in relation to a relevant offence
cannot be tendered in evidence to a court in any proceedings relating to the
relevant offence unless the court is satisfied that the surveillance was agreed
to by an appropriate consenting official of the foreign country.
(1) In this Act:
protected information means:
(a) any information obtained from the use of a surveillance device under a
warrant, an emergency authorisation or a tracking device authorisation;
or
(b) any information relating to:
(i) an application for, the issue of, the existence of, or the expiration
of, a warrant, an emergency authorisation or a tracking device authorisation;
or
(ii) an application for approval of powers exercised under an emergency
authorisation; or
(c) any information that is likely to enable the identification of a
person, object or premises specified in a warrant, an emergency authorisation or
a tracking device authorisation; or
(d) any other information obtained by a law enforcement officer:
(i) without the authority of a warrant or a tracking device authorisation;
or
(ii) without the authority of an emergency authorisation that was
subsequently approved; or
(iii) in a case where the information was obtained through the use of a
surveillance device in a foreign country, or on a vessel or aircraft that is
registered under the law of a foreign country and that is in or above waters
beyond the outer limit of Australia’s territorial sea (within the meaning
of section 41)—without the agreement of the appropriate consenting
official of that foreign country, and of any other foreign country, whose
agreement is required under section 42;
in contravention of the requirement for such a warrant, tracking device
authorisation or emergency authorisation.
(2) For the avoidance of doubt, information obtained under an emergency
authorisation falls under paragraph (a) and not paragraph (d) of the
definition of protected information unless:
(a) an eligible Judge or nominated AAT member refuses to approve the
giving of the emergency authorisation; or
(b) contrary to the requirement of section 33, no application for
such an approval has been made.
(1) A person commits an offence if:
(a) the person uses, records, communicates or publishes any information;
and
(b) the information is protected information; and
(c) the use, recording, communication or publication of the information is
not permitted by this section.
Penalty: Imprisonment for 2 years.
(2) A person commits an offence if:
(a) the person uses, records, communicates or publishes any information;
and
(b) the information is protected information; and
(c) the use, recording, communication or publication of the information is
not permitted by this section; and
(d) the use, recording, communication or publication of the information,
endangers the health or safety of any person or prejudices the effective conduct
of an investigation into a relevant offence.
Penalty: Imprisonment for 10 years.
(3) Subject to subsections (4) and (5), protected information may not
be admitted in evidence in any proceedings.
(4) Subsections (1), (2) and (3) do not apply to:
(a) the use, recording, communication or publication of any information
that has been disclosed in proceedings in open court lawfully; 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 risk of serious violence to a person or substantial
damage to property; or
(c) the communication to the Director-General (within the meaning of the
Australian Security Intelligence Organisation Act 1979) of protected
information that relates or appears to relate to any matter within the functions
of that organisation; or
(d) the communication to the agency head (within the meaning of the
Intelligence Services Act 2001) of an agency (within the meaning of that
Act) of protected information that relates or appears to relate to any matter
within the functions of that agency; or
(e) the use, recording or communication of:
(i) protected information referred to in paragraph (c)—by an
officer or employee of the Australian Security Intelligence Organisation;
or
(ii) protected information referred to in paragraph (d)—by a
staff member (within the meaning of the Intelligence Services Act 2001)
of an agency (within the meaning of that Act);
in the performance of his or her official functions; or
(f) the communication of information to a foreign country or an
appropriate authority of a foreign country, or the use of information so
communicated, in accordance with the Mutual Assistance in Criminal Matters
Act 1987, if that communication or use relates to the investigation of an
offence or the conduct of proceedings in respect of an offence against a law of
that foreign country that is punishable by a maximum term of imprisonment of 3
years or more, by imprisonment for life or by the death penalty; or
(5) Protected information may be used, recorded, communicated or
published, or may be admitted in evidence, if it is necessary to do so for any
of the following purposes:
(a) the investigation of a relevant offence (including a State or
Territory relevant offence but not including a relevant offence referred to in
paragraph (d) or (i)) or the making of a report on the outcome of such an
investigation;
(b) the making of a decision whether or not to bring a prosecution for a
relevant offence (including a State or Territory relevant offence but not
including a relevant offence referred to in paragraph (d) or
(i));
(c) a relevant proceeding (including State or Territory relevant
proceedings but not including a relevant proceeding in respect of a relevant
offence referred to in paragraph (d) or (i));
(d) an investigation of a complaint against, or into the conduct of, a
public officer within the meaning of this Act and also any subsequent
investigation or prosecution of a relevant offence arising directly from the
investigation of the complaint, or into the conduct;
(e) the making of a decision in relation to the appointment, term of
appointment, termination of the appointment, or retirement, of a person referred
to in paragraph (d);
(f) the keeping of records and the making of reports by a law enforcement
agency under Division 2;
(g) an inspection by the Ombudsman under section 55;
(h) the performance of any function of the public interest monitor under
either the Crime and Misconduct Act 2001 of Queensland or the Police
Powers and Responsibilities Act 2000 of Queensland or under both of those
Acts with respect to ensuring compliance with either of those Acts or with this
Act;
(i) an investigation under the Privacy Act 1988 or any other law of
the Commonwealth concerning the privacy of personal information and also any
subsequent investigation or prosecution of a relevant offence arising directly
from that first-mentioned investigation.
(6) Paragraphs (4)(f) and (5)(a), (b) and (c) do not
authorise:
(a) the use, recording, communication or publication of information of the
kind referred to in paragraph (d) of the definition of protected
information in section 44; or
(b) the giving in evidence of protected information of the kind referred
to in paragraph (d) of that definition;
regardless of whether that information is also information of the kind
referred to in paragraph (b) or (c) of that definition.
(7) If protected information obtained through the use of a surveillance
device by a law enforcement officer of a particular law enforcement agency (the
originating agency):
(a) is communicated to another law enforcement agency (by communicating it
to the chief officer or another officer of that agency); or
(b) is communicated to any agency that is not a law enforcement agency
(other than the Australian Security Intelligence Organisation and the agencies
within the meaning if the Intelligence Services Act 2001) (by
communicating it to the officer in charge of that agency or to another officer
of that agency);
for a particular purpose, the protected information that has been so
communicated:
(c) may be communicated from one officer to another within that agency or
organisation for that purpose only; and
(d) must not, except for the purpose of bringing a relevant proceeding, or
a State or Territory relevant proceeding, be communicated to any person who is
not a member of that agency or organisation.
(8) A reference in subsection (5) to a relevant offence is a
reference to any relevant offence, whether or not the offence in respect of
which the relevant warrant or emergency authorisation was issued or
given.
(9) In this section:
State or Territory relevant offence means a relevant offence
against the law of a State or self-governing Territory that is punishable by a
maximum term of imprisonment of 3 years or more or for life.
State or Territory relevant proceeding means:
(a) the prosecution of a State or Territory relevant offence; or
(b) a proceeding for the confiscation, forfeiture or restraint of
property, or for the imposition of a pecuniary penalty, in relation to a State
or Territory relevant offence; or
(c) a proceeding for the protection of a child or an intellectually
impaired person; or
(d) a disciplinary offence against a public officer; or
(e) 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 State or Territory relevant offence; or
(f) a proceeding by way of a bail application that relates to a proceeding
by way of a prosecution for a State or Territory relevant offence; or
(g) a proceeding for a review of a decision to refuse such a bail
application; or
(h) a proceeding for a review of a decision to grant such a bail
application.
(1) The chief officer of a law enforcement agency:
(a) must ensure that every record or report comprising protected
information is kept in a secure place that is not accessible to people who are
not entitled to deal with the record or report; and
(b) must cause to be destroyed any record or report referred to in
paragraph (a):
(i) as soon as practicable after the making of the record or report if the
chief officer is satisfied that no civil or criminal proceeding to which the
material contained in the record or report relates has been, or is likely to be,
commenced and that the material contained in the record or report is not likely
to be required in connection with an activity referred to in subsection 45(4) or
a purpose referred to in subsection 45(5); and
(ii) within the period of 5 years after the making of the record or
report, and within each period of 5 years thereafter, unless, before the end of
that period, the chief officer is satisfied in relation to the material
contained in the record or report of a matter referred to in
subparagraph (i) and certifies to that effect.
(2) The officer in charge of any agency that is not a law enforcement
agency but that, as described in subsection 45(4) or (5), receives records or
reports obtained by use of a surveillance device:
(a) must ensure that every record or report that is so received is kept in
a secure place that is not accessible to people who are not entitled to deal
with the record or report; and
(b) must cause to be destroyed any record or report referred to in
paragraph (a):
(i) as soon as practicable after the receipt of the record or report by
the agency if the officer in charge is satisfied that no civil or criminal
proceeding to which the material contained in the record or report relates has
been, or is likely to be, commenced and that the material contained in the
record or report is not likely to be required in connection with an activity
referred to in subsection 45(4) or a purpose referred to in subsection 45(5);
and
(ii) within the period of 5 years after the making of the record or
report, and within each period of 5 years thereafter, unless, before the end of
that period, the officer in charge is satisfied in relation to the material
contained in the record or report of a matter referred to in
subparagraph (i) and certifies to that effect.
(3) Subsections (1) and (2) do not apply to a record or report that
is received into evidence in legal proceedings or disciplinary
proceedings.
(1) In a 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
(b) is in the public interest.
(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 proceeding before a court, tribunal or
Royal Commission.
A person is not entitled to search any protected information in the
custody of a court, tribunal or Royal Commission unless the court, tribunal or
Royal Commission otherwise orders in the interests of justice.
(1) The chief officer of each law enforcement agency to which there
belongs or is seconded a law enforcement officer to whom:
(a) a warrant is issued; or
(b) an emergency authorisation is given; or
(c) a tracking device authorisation is given;
must, as soon as practicable after the warrant or authority ceases to be in
force:
(d) make a report to the Minister in accordance with this section;
and
(e) give to the Minister a copy of each such warrant or authorisation, and
of any instrument revoking, extending or varying such a warrant or
authorisation.
(2) In the case of a surveillance device warrant, or an authorisation
referred to in paragraph (1)(b) or (c), the report must:
(a) state whether the warrant or authorisation was executed; and
(b) if so:
(i) state the name of the person primarily responsible for the execution
of the warrant or authorisation; and
(ii) state the name of each person involved in the installation,
maintenance or retrieval of the surveillance device; and
(iii) state the kind of surveillance device used; and
(iv) state the period during which the device was used; and
(v) state the name, if known, of any person whose conversations or
activities were overheard, recorded, monitored, listened to or observed by the
use of the device; and
(vi) state the name, if known, of any person whose location was determined
by the use of a tracking device; and
(vii) give details of any premises on which the device was installed or
any place at which the device was used; and
(viii) give details of any object in or on which the device was installed
and any premises where the object was located when the device was installed;
and
(ix) if the warrant is issued or the authorisation given in respect of the
investigation of a relevant offence—give details of the benefit to the
investigation of the use of the device and of the general use made or to be made
of any evidence or information obtained by the use of the device; and
(x) if the warrant is issued or the authorisation given in respect of the
location and safe recovery of a child to whom a recovery order
relates—give details of use of the device in assisting with the location
and safe recovery of the child; and
(xi) give details of the communication of evidence or information obtained
by the use of the device to persons other than officers of the agency;
and
(xii) give details of the compliance with the conditions (if any) to which
the warrant or authorisation was subject; and
(c) if the warrant or authorisation was extended or varied,
state:
(i) the number of extensions or variations; and
(ii) the reasons for them.
(3) In the case of a retrieval warrant, the report must:
(a) give details of any premises entered, anything opened and any object
removed and replaced under the warrant; and
(b) state whether the surveillance device was retrieved under the warrant;
and
(c) if the device was not retrieved, state the reason why; and
(d) give details of the compliance with the conditions (if any) to which
the warrant was subject.
(1) The chief officer of a law enforcement agency must submit a report to
the Minister that includes the following information in respect of each
financial year:
(a) the number of applications for warrants made by or on behalf of, and
the number of warrants issued to, law enforcement officers of the agency during
that year; and
(b) the number of applications for emergency authorisations made by, and
the number of emergency authorisations given to, law enforcement officers of the
agency during that year; and
(c) the number of applications for tracking device authorisations made by,
and the number of such authorisations given to, law enforcement officers of the
agency during that year; and
(d) the number of remote applications for warrants made by or on behalf of
law enforcement officers of the agency during that year; and
(e) the number of applications for warrants, emergency authorisations or
tracking device authorisations made by or on behalf of law enforcement officers
of the agency that were refused during that year, and the reasons for refusal;
and
(f) the number of applications for extensions of warrants made by or on
behalf of law enforcement officers of the agency during that year, the number of
extensions granted or refused and the reasons why they were granted or refused;
and
(g) the number of arrests made by law enforcement officers of the agency
during that year on the basis (wholly or partly) of information obtained by the
use of a surveillance device under a warrant, emergency authorisation or
tracking device authorisation; and
(h) the number of instances during that year in which the location and
safe recovery of children to whom recovery orders related was assisted (wholly
or partly) by information obtained by the use of a surveillance device under a
warrant, emergency authorisation or tracking device authorisation; and
(i) the number of prosecutions for relevant offences that were commenced
during that year in which information obtained by the use of a surveillance
device under a warrant, emergency authorisation or tracking device authorisation
was given in evidence and the number of those prosecutions in which a person was
found guilty; and
(j) any other information relating to the use of surveillance devices and
the administration of this Act that the Minister considers
appropriate.
(2) The information referred to in paragraphs (1)(a), (b) and (c)
must be presented in such a way as to identify the number of warrants issued,
emergency authorisations given, and tracking device authorisations given, in
respect of each different kind of surveillance device.
(3) The report must be submitted to the Minister 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.
(4) The Minister must cause a copy of the report to be laid before each
House of the Parliament within 15 sitting days of that House after the Minister
receives it.
The chief officer of a law enforcement agency must cause the following to
be kept:
(a) each warrant issued to a law enforcement officer of the
agency;
(b) each instrument of revocation given to the chief officer under
subsection 20(4) or 27(4);
(c) each record made under section 31 in relation to an emergency
authorisation given to a law enforcement officer of the agency;
(d) each record made under section 40 in relation to a tracking
device authorisation given to a law enforcement officer of the agency;
(e) each written application for an emergency authorisation made by a law
enforcement officer of the agency;
(f) each written application for a tracking device authorisation made by a
law enforcement officer of the agency;
(g) a copy of each application made by or on behalf of a law enforcement
officer of the agency for:
(i) a warrant; or
(ii) extension or variation of a warrant;
(h) a copy of each application made under section 33 by or on behalf
of an appropriate authorising officer for approval of the giving of an emergency
authorisation to a law enforcement officer of the agency;
(j) a copy of each report made to the Minister under
section 49;
(k) a copy of each certificate issued by an appropriate authorising
officer of the agency concerned under section 62.
The chief officer of a law enforcement agency must cause the following to
be kept:
(a) a statement as to whether each application made by or on behalf of a
law enforcement officer of the agency for a warrant, or for the extension or
variation of a warrant, was granted, refused or withdrawn;
(b) a statement as to whether each application made by a law enforcement
officer of the agency for an emergency authorisation was granted, refused or
withdrawn;
(c) a statement as to whether each application made by or on behalf of an
appropriate authorising officer for approval of the giving of an emergency
authorisation to a law enforcement officer of the agency was granted, refused or
withdrawn;
(d) a statement as to whether each application made by a law enforcement
officer of the agency for a tracking device authorisation was granted, refused
or withdrawn;
(e) details of each use by the agency, or by a law enforcement officer of
the agency, of information obtained by the use of a surveillance device by a law
enforcement officer of the agency;
(f) details of each communication by a law enforcement officer of the
agency to a person other than a law enforcement officer of the agency of
information obtained by the use of a surveillance device by a law enforcement
officer of the agency;
(g) details of each occasion when, to the knowledge of a law enforcement
officer of the agency, information obtained by the use of a surveillance device
by a law enforcement officer of the agency was given in evidence in a relevant
proceeding;
(h) details of each occasion when, to the knowledge of a law enforcement
officer of the agency, information obtained by the use of a surveillance device
by a law enforcement officer of the agency was used in the location and safe
recovery of a child to whom a recovery order related;
(j) details of the destruction of records or reports under paragraph
46(1)(b).
(1) The chief officer of a law enforcement agency must cause a register of
warrants, emergency authorisations and tracking device authorisations sought by
law enforcement officers of that agency to be kept.
(2) The register is to specify, for each warrant sought by or on behalf of
a law enforcement officer of the agency:
(a) the date the warrant was issued or refused; and
(b) the name of the eligible Judge or nominated AAT member who issued or
refused to issue the warrant; and
(c) if the warrant was issued:
(i) the name of the law enforcement officer named in the warrant as the
person primarily responsible for executing it; and
(ii) if the warrant was issued in relation to a relevant offence—the
relevant offence in relation to which the warrant was issued; and
(iii) if the warrant was issued in relation to a recovery order—the
date of issue of the recovery order and the name of the child to whom the order
related; and
(iv) the period during which the warrant is in force; and
(v) details of any variation or extension of the warrant.
(3) The register is to specify, for each emergency authorisation sought by
a law enforcement officer of the agency:
(a) the date the emergency authorisation was given or refused;
and
(b) the name of the appropriate authorising officer who gave or refused to
give the emergency authorisation; and
(c) if the emergency authorisation was given:
(i) the name of the law enforcement officer to whom the authorisation was
given; and
(ii) if the authorisation related to a relevant offence—the relevant
offence in relation to which it was given; and
(iii) if the authorisation related to a recovery order—the date of
issue of the recovery order and the name of the child to whom the order related;
and
(iv) the date on which the application for approval of powers exercised
under the authorisation was made; and
(v) whether that application for approval of powers exercised under the
authorisation was successful or not.
(4) The register is to specify, for each tracking device authorisation
sought by a law enforcement officer of the agency:
(a) the date the tracking device authorisation was given or refused;
and
(b) the name of the appropriate authorising officer who gave or refused to
give the tracking device authorisation; and
(c) if the tracking device authorisation was given:
(i) the name of the law enforcement officer to whom the authorisation was
given; and
(ii) if the authorisation related to a relevant offence—the relevant
offence in relation to which it was given; and
(iii) if the authorisation related to a recovery order—the date of
issue of the recovery order and the name of the child to whom the order
related.
The Ombudsman may, by appointment in writing, under this Division,
appoint members of the Ombudsman’s staff to be inspecting
officers.
(1) The Ombudsman must inspect the records of a law enforcement agency to
determine the extent of compliance with this Act by the agency and law
enforcement officers of the agency.
(2) In the case of the Australian Crime Commission, the Ombudsman must
also inspect the records of the Commission to determine the extent of compliance
by the Commission with the surveillance device laws of any State or Territory in
relation to any warrants or emergency authorisations sought, and surveillance
devices used, by law enforcement officers of the Commission under those
laws.
(3) 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) despite any other law, is entitled to make copies of, and to take
extracts from, records of the agency; and
(d) 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.
(4) The chief officer must ensure that members of staff of the agency give
the Ombudsman any assistance the Ombudsman reasonably requires to enable the
Ombudsman to perform functions under this section.
(5) While an operation is being conducted under a warrant, emergency
authorisation or tracking device authorisation, the Ombudsman may refrain from
inspecting any records of the agency concerned that are relevant to the
obtaining or execution of that warrant or authorisation.
(1) If the Ombudsman has reasonable grounds to believe that a law
enforcement officer of a particular law enforcement agency is able to give
information relevant to an inspection under this Division of the agency’s
records, subsections (2) and (3) have effect.
(2) The Ombudsman may, by writing given to the law enforcement officer,
require the officer to give the information to the Ombudsman:
(a) by writing signed by the officer; and
(b) at a specified place and within a specified period.
(3) The Ombudsman may, by writing given to the law enforcement officer,
require the officer to attend:
(a) before a specified inspecting officer; and
(b) at a specified place; and
(c) within a specified period or at a specified time on a specified
day;
to answer questions relevant to the inspection.
(4) If the Ombudsman:
(a) has reasonable grounds to believe that a law enforcement officer of a
particular law enforcement agency is able to give information relevant to an
inspection under this Division of the agency’s records; and
(b) does not know the officer’s identity;
the Ombudsman may, by writing given to the chief officer of the agency,
require the chief officer, or a person nominated by the chief officer, to
attend:
(c) before a specified inspecting officer; and
(d) at a specified place; and
(e) within a specified period or at a specified time on a specified
day;
to answer questions relevant to the inspection.
(5) The place, and the period or the time and day, specified in a
requirement under this section, must be reasonable having regard to the
circumstances in which the requirement is made.
(6) A person must not refuse:
(a) to attend before a person; or
(b) to give information; or
(c) to answer questions;
when required to do so under this section.
Penalty for an offence against this subsection: Imprisonment for 6
months.
(1) Despite any other law, a person is not excused from giving
information, answering a question, or giving access to a document, as and when
required under this Division, on the ground that giving the information,
answering the question, or giving access to the document, as the case may be,
would contravene a law, would be contrary to the public interest or might tend
to incriminate the person or make the person liable to a penalty, but:
(a) the information, the answer, or the fact that the person has given
access to the document, as the case may be; and
(b) any information or thing (including a document) obtained as a direct
or indirect consequence of giving the information, answering the question or
giving access to the document;
is not admissible in evidence against the person except in a proceeding by
way of a prosecution for an offence against section 45 or against
Part 7.4 or 7.7 of the Criminal Code.
(2) Nothing in section 45 or any other law prevents an officer of an
agency from:
(a) giving information to an inspecting officer (whether orally or in
writing and whether or not in answer to a question); or
(b) giving access to a record of the agency to an inspecting
officer;
for the purposes of an inspection under this Division of the agency’s
records.
(3) Nothing in section 45 or any other law prevents an officer of an
agency from making a record of information, or causing a record of information
to be made, for the purposes of giving the information to a person as permitted
by subsection (2).
(1) In this section:
State or Territory agency means a law enforcement agency of a
State or Territory within the meaning of the law of that State or Territory that
is of a similar nature to this Act.
State or Territory inspecting authority, in relation to a
State or Territory agency, means the authority that, under the law of the State
or Territory concerned, has the function of making inspections of a similar kind
to those provided for in section 55 when the State or Territory agency is
exercising powers under the law of that State or Territory that is of a similar
nature to this Act.
(2) The Ombudsman may give information that:
(a) relates to a State or Territory agency; and
(b) was obtained by the Ombudsman under this Act;
to the State or Territory inspecting authority in relation to the
agency.
(3) The Ombudsman may only give information to an authority under
subsection (2) if the Ombudsman is satisfied that the giving of the
information is necessary to enable the authority to perform its functions in
relation to the State or Territory agency.
(4) The Ombudsman may receive from a State or Territory inspecting
authority information relevant to the performance of the Ombudsman’s
functions under this Act.
(1) The Ombudsman may delegate:
(a) to an APS employee responsible to the Ombudsman; or
(b) to a person having similar oversight functions to the Ombudsman under
the law of a State or Territory or to an employee responsible to that
person;
all or any of the Ombudsman’s powers under this Division other than a
power to report to the Minister.
(2) A delegate must, upon request by a person affected by the exercise of
any power delegated to the delegate, produce the instrument of delegation, or a
copy of the instrument, for inspection by the person.
The Ombudsman, an inspecting officer, or a person acting under an
inspecting officer’s direction or authority, is not liable to an action,
suit or proceeding for or in relation to an act done, or omitted to be done, in
good faith in the performance or exercise, or the purported performance or
exercise, of a function or power conferred by this Division.
(1) The Ombudsman must make a written report to the Minister at 6 monthly
intervals on the results of each inspection under section 55.
(2) The Minister must cause a copy of the report to be laid before each
House of the Parliament within 15 sitting days of that House after the Minister
receives it.
(3) If the report relates, in whole or in part, to an inspection under
section 55 of compliance by the Australian Crime Commission with the
surveillance device laws of a State or Territory, the Minister must, as soon as
practicable after the report is laid before each House of the Parliament, send a
copy of the report to the Minister of that State or Territory with
responsibility for the surveillance device laws of that State or
Territory.
(1) An appropriate authorising officer for a law enforcement officer, or a
person assisting the appropriate authorising officer, may issue a written
certificate signed by the officer or person, setting out any facts he or she
considers relevant with respect to:
(a) anything done by the law enforcement officer or by a person assisting
or providing technical expertise to him or her:
(i) in connection with the execution of a warrant; or
(ii) in accordance with an emergency authorisation; or
(iii) in accordance with a tracking device authorisation; or
(b) anything done by the law enforcement officer in connection
with:
(i) the communication by a person to another person; 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 or tracking device authorisation.
(2) A certificate issued under subsection (1) is admissible in
evidence in any proceedings as prima facie evidence of the matters stated in the
certificate.
(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 unless the giving of that authorisation has been
approved under section 35.
(4) For the purposes of this section, a document purporting to be a
certificate issued under subsection (1) is, unless the contrary intention
is established, to be taken to be such a certificate and to have been duly
given.
(5) A certificate must not be admitted in evidence under
subsection (2) in prosecution proceedings unless the person charged or a
solicitor who has appeared for the person in those proceedings has, at least 14
days before the certificate is sought to be so admitted, been given a copy of
the certificate together with reasonable evidence of the intention to produce
the certificate as evidence in those proceedings.
(6) Subject to subsection (7), if, under subsection (2), a
certificate is admitted in evidence in prosecution proceedings, the person
charged may require the person giving the certificate to be called as a witness
for the prosecution and cross-examined as if he or she had given evidence of the
matters stated in the certificate.
(7) Subsection (6) does not entitle the person charged to require the
person giving a certificate to be called as a witness for the prosecution unless
the court before which the prosecution proceedings are brought, by order, allows
the person charged to require the person giving the certificate to be so
called.
(8) Any evidence given in support, or in rebuttal, of a matter stated in a
certificate given under subsection (2) or (3) must be considered on its
merits and the credibility and probative value of such evidence must be neither
increased nor diminished by reason of this section.
The chief officer of a law enforcement agency may, by writing, delegate
to a member of the staff of the agency who is an SES employee or a person of
equivalent rank, all or any of the chief officer’s powers or
functions.
If:
(a) a person suffers loss or injury as a result of the use by the
Australian Federal Police or the Australian Crime Commission of a surveillance
device; and
(b) the use of that device:
(i) is prohibited by the law of the State or Territory in which the use
occurs; and
(ii) is not in accordance with this Act;
the Commonwealth is liable to pay to the person who has suffered the loss
or injury such compensation as is agreed on between the Commonwealth and that
person or, in default of such an agreement, as is determined by action against
the Commonwealth in a court of competent jurisdiction.
(1) The Governor-General may make regulations prescribing
matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving
effect to this Act.
(2) The regulations may impose a penalty, not exceeding 50 penalty units,
for a contravention of the regulations.
Australian Federal Police
Act 1979
1 Division 2 of
Part II
Repeal the Division.
2 Transitional and saving
provision
Despite the repeal of Division 2 of Part II of the
Australian Federal Police Act 1979 by
item 1 of this Schedule:
(a) any warrant issued under that Division and in force immediately before
the day of that repeal remains in force, according to its terms, after that day
as if that Division had not been repealed; and
(b) any consent by a Judge of a court created by the Parliament to be
nominated by the Minister under subsection 12D(2) of the Australian Federal
Police Act 1979, being a consent that is in force immediately before the day
of that repeal, is to be treated, with effect from that day, as if it were a
consent to be declared by the Minister to be an eligible Judge under subsection
12(3) of the Surveillance Devices Act (No. 2) 2004; and
(c) any nomination by the Minister of a Judge of a court created by the
Parliament as a Judge who may issue warrants under section 12G of the
Australian Federal Police Act 1979, being a nomination that was in force
immediately before the day of that repeal, is to be treated, with effect from
that day, as if it were a nomination of that Judge as an eligible Judge for the
purposes of section 12 of the Surveillance Devices Act (No. 2)
2004; and
(d) any nomination by the Minister of a person holding an appointment
referred to in subsection 12DA(1) of the Australian Federal Police Act
1979, being a nomination that was in force immediately before the day of
that repeal, is taken, with effect from that day, to be a nomination of that
person for the purposes of section 13 of the Surveillance Devices Act
(No. 2) 2004.
3 Operation of Division 2 of Part II of
the Australian Federal Police Act 1979 preserved for limited
purposes
Despite the repeal of Division 2 of Part II of the Australian
Federal Police Act 1979 by item 1 of this Schedule, that Division is to be
treated as continuing to apply in relation to the use of listening devices in
respect of offences against the law of the Australian Capital Territory as
if:
(a) the Division had not been repealed; and
(b) the definitions of class 1 general offence and
class 2 general offence and the definition of general
offence were limited to offences against the law of the Australian
Capital Territory; and
(c) for the purposes of the continued operation of section 12L of the
Australian Federal Police Act 1979:
(i) sections 219F to 219K of the Customs Act 1901 had not been
repealed; and
(ii) references in section 12L of the Australian Federal Police
Act 1979 to general offences, class 1 general offences or class 2 general
offences were to be construed as if limited to offences against the law of the
Australian Capital Territory.
4 Paragraph 476.2(4)(b) of the Criminal
Code
Repeal the paragraph, substitute:
(b) the person does so:
(i) under a warrant issued under the law of the Commonwealth, a State or a
Territory; or
(ii) under an emergency authorisation given to the person under
Part 3 of the Surveillance Devices Act (No. 2) 2004 or under a
law of a State or Territory that makes provision to similar effect; or
(iii) under a tracking device authorisation given to the person under
section 39 of that Act;
5 Division 1A of
Part XII
Repeal the Division.
6 Transitional and saving
provision
Despite the repeal of Division 1A of Part XII of the Customs
Act 1901 by item 5 of this Schedule:
(a) any warrant issued under that Division and in force immediately before
the day of that repeal remains in force, according to its terms, after that day
as if that Division had not been repealed; and
(b) any consent by a Judge of a court created by the Parliament to be
nominated by the Minister under subsection 219AA(1) of the Customs Act
1901, being a consent that is in force immediately before the day of that
repeal, is to be treated, with effect from that day, as if it were a consent to
be declared by the Minister to be an eligible Judge under subsection 12(3) of
the Surveillance Devices Act (No. 2) 2004; and
(c) any nomination by the Minister of a Judge of a court created by the
Parliament as a Judge who may issue warrants under that Division, being a
nomination that was in force immediately before the day of that repeal, is to be
treated, with effect from that day, as if it were a nomination of that Judge as
an eligible Judge for the purposes of section 12 of the Surveillance
Devices Act (No. 2) 2004; and
(d) any nomination by the Minister of a person holding an appointment
referred to in subsection 219AB(1) of the Customs Act 1901, being a
nomination that was in force immediately before the day of that repeal, is
taken, with effect from that day, to be a nomination of that person for the
purposes of section 13 of the Surveillance Devices Act (No. 2)
2004.
Mutual Assistance in
Criminal Matters Act 1987
7 At the end of Part II
Add:
(1) If:
(a) a foreign country (the requesting country) has commenced
an investigation into, or proceedings in relation to, a serious offence against
the laws of that country; and
(b) that foreign country requests the provision of material relevant to
that investigation or those proceedings; and
(c) the Attorney-General is satisfied that the material requested
is:
(i) material lawfully obtained by an enforcement agency in Australia;
and
(ii) material lawfully in the possession of that enforcement
agency;
the Attorney-General may, by writing in accordance with the approved form,
authorise the provision of that material to the requesting country.
(2) Subsection (1) does not permit the Attorney-General to authorise
the provision to the requesting country of material obtained through the use of
a surveillance device unless the request relates to an investigation into, or
proceedings in relation to, a serious offence against the laws of that country
that is punishable by a maximum term of imprisonment of 3 years or more, by
imprisonment for life or by the death penalty.
(3) An authorisation by the Attorney-General under subsection (1) may
include a direction to an authorised officer of the enforcement agency having
possession of the material about how the material is to be provided to that
foreign country.
(4) In authorising the provision of material to a foreign country, the
Attorney-General may specify the uses to which that material can be
put.
(5) In this section:
authorised officer includes a law enforcement officer within
the meaning of section 6 of the Surveillance Devices Act (No. 2)
2004.
enforcement agency includes a law enforcement agency within
the meaning of section 6 of the Surveillance Devices Act (No. 2)
2004.
material lawfully obtained by an enforcement agency in
Australia includes:
(a) material obtained from individuals or entities by consent;
and
(b) material obtained by warrant or the exercise of a coercive power by a
court in Australia for the purposes of a domestic investigation or
prosecution;
but does not include material obtained under the Telecommunications
(Interception) Act 1979.
Note: The heading to section 13 is altered by inserting
“for the taking of evidence or the production of documents”
after “countries”.