SURVEILLANCE DEVICES ACT 2004 - SECT 38 Use of surveillance devices without warrant for listening to or recording words in limited circumstances
SURVEILLANCE DEVICES ACT 2004 - SECT 38
Use of surveillance devices without warrant for listening to or recording words in limited circumstances(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
(aa) if the officer belongs or is seconded to the National Anti - Corruption Commission--that is within the functions of the National Anti - Corruption Commissioner set out in section 17 of the National Anti - Corruption Commission Act 2022 ; 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 2002 ;
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.
(3A) If a Part 5.3 supervisory order is in force in relation to a person, a State or Territory law enforcement officer acting in the course of his or her duties may, without warrant, use a surveillance device to obtain information relating to the person for either of the following purposes:
(a) achieving a Part 5.3 object;
(b) determining whether the Part 5.3 supervisory order has been, or is being, complied with;
if the use involves listening to, or recording, words spoken by a person, and the use is confined to circumstances where:
(e) 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
(f) 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 (e); or
(ii) so far as subsection (6) applies in relation to the Part 5.3 supervisory order--by that subsection.
(3B) If a community safety supervision order is in force in relation to a person, a State or Territory law enforcement officer acting in the course of the officer's duties may, without warrant, use a surveillance device to obtain information relating to the person for either of the following purposes:
(a) achieving a Part 9.10 object;
(b) determining whether the community safety supervision order has been, or is being, complied with;
if the use involves listening to, or recording, words spoken by a person, and the use is confined to circumstances where:
(c) 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
(d) 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 (c); or
(ii) so far as subsection (7) applies in relation to the community safety supervision order--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.
(a) a Part 5.3 supervisory order is in force in relation to a person; and
(b) a person (other than a State or Territory law enforcement officer) is assisting a State or Territory law enforcement officer who is acting in the course of his or her duties in relation to either of the following purposes:
(i) achieving a Part 5.3 object;
(ii) determining whether the Part 5.3 supervisory order has been, or is being, complied with;
the person assisting may, without warrant, use a surveillance device to obtain information relating to the person mentioned in paragraph (a) if:
(c) the use involves listening to, or recording, words spoken by a person; and
(d) the person assisting 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.
(a) a community safety supervision order is in force in relation to a person; and
(b) a person (other than a State or Territory law enforcement officer) is assisting a State or Territory law enforcement officer who is acting in the course of the officer's duties in relation to either of the following purposes:
(i) achieving a Part 9.10 object;
(ii) determining whether the community safety supervision order has been, or is being, complied with;
the person assisting may, without warrant, use a surveillance device to obtain information relating to the person mentioned in paragraph (a) if:
(c) the use involves listening to, or recording, words spoken by a person; and
(d) the person assisting 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.