SURVEILLANCE DEVICES ACT 2004 - SECT 45 Prohibition on use, recording, communication or publication of protected information or its admission in evidence

SURVEILLANCE DEVICES ACT 2004 - SECT 45

  (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 or section   45A (which deals with information relating to integrity operations) or section   65B (which deals with information obtained before an interim control order is declared void).

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 or section   45A (which deals with information relating to integrity operations) or section   65B (which deals with information obtained before an interim control order is declared void); 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) and section   65B, protected information may not be admitted in evidence in any proceedings.

  (4)   Subsections   (1), (2) and (3) do not apply to:

  (aa)   the use, recording, communication or publication of protected information in connection with the administration or execution of this Act; or

  (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 the Director - General (within the meaning of the Australian Security Intelligence Organisation Act 1979 ), an ASIO employee (within the meaning of that Act) or an ASIO affiliate (within the meaning of that Act); or

  (ii)   protected information referred to in paragraph   (d)--by the agency head (within the meaning of the Intelligence Services Act 2001 ), or a staff member (within the meaning of that Act), of an agency (within the meaning of that Act);

    in the performance of his or her official functions; or

  (f)   the communication of information for the purpose of providing it to one of the following entities (or to an appropriate authority of that entity):

  (i)   a foreign country;

  (ii)   the International Criminal Court;

  (iii)   a War Crimes Tribunal;

    if the information was obtained under, or relates to, a surveillance device warrant issued in relation to an international assistance authorisation requested by that entity; or

  (g)   the communication of information for the purpose of providing it to a foreign country, or an appropriate authority of a foreign country, if this has been authorised under subsection   13A(1) of the Mutual Assistance in Criminal Matters Act 1987 ; or

  (h)   the communication of information for the purpose of providing it to the International Criminal Court, if this has been authorised under section   69A of the International Criminal Court Act 2002 ; or

  (i)   the communication of information for the purpose of providing it to a War Crimes Tribunal, if this has been authorised under section   25A of the International War Crimes Tribunals Act 1995 .

  (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 (not including a relevant proceeding in respect of a relevant offence referred to in paragraph   (d) or (i)) or a State or Territory relevant proceeding;

  (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 Corruption 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;

  (ia)   the performance of a function or duty, or the exercise of a power, by a person, court or other body under, or in relation to a matter arising under:

  (i)   Division   104 (control orders), Division   105A (post - sentence orders) or Division   395 (community safety orders) of the Criminal Code ; or

  (ii)   a post - sentence detention law or a post - sentence supervision law; or

  (iii)   section   36C of the Australian Citizenship Act 2007 ;

  (j)   in the case of information:

  (i)   obtained under a warrant issued on the basis of a Part   5.3 supervisory order that is or was in force; or

  (ii)   relating to an application for, the issue of, the existence of, or the expiration of, such a warrant; or

  (iii)   that is likely to enable the identification of a person, object or premises specified in such a warrant;

    determining whether the order, or any succeeding Part   5.3 supervisory order, has been, or is being, complied with;

  (k)   in the case of information:

  (i)   obtained under a tracking device authorisation given on the basis of a Part   5.3 supervisory order; or

  (ii)   relating to an application for, the giving of, the existence of, or the expiration of, a tracking device authorisation given on the basis of a Part   5.3 supervisory order; or

  (iii)   that is likely to enable the identification of a person, object or premises specified in a tracking device authorisation given on the basis of a Part   5.3 supervisory order;

    determining whether the Part   5.3 supervisory order, or any succeeding Part   5.3 supervisory order, has been, or is being, complied with;

  (ka)   in the case of information:

  (i)   obtained under a warrant issued on the basis of a community safety supervision order that is or was in force; or

  (ii)   relating to an application for, the issue of, the existence of, or the expiration of, such a warrant; or

  (iii)   that is likely to enable the identification of a person, object or premises specified in such a warrant;

    determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with;

  (kb)   in the case of information:

  (i)   obtained under a tracking device authorisation given on the basis of a community safety supervision order; or

  (ii)   relating to an application for, the giving of, the existence of, or the expiration of, a tracking device authorisation given on the basis of a community safety supervision order; or

  (iii)   that is likely to enable the identification of a person, object or premises specified in a tracking device authorisation given on the basis of a community safety supervision order;

    determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with;

  (l)   an IGIS official exercising powers, or performing functions or duties, as an IGIS official.

  (5A)   To avoid doubt, paragraphs   (5)(ia), (j) and (ka) do not limit paragraph   (5)(c).

Note:   Under paragraph   (5)(c), protected information obtained under a warrant or authorisation may be used for the purposes of any proceedings relating to a post - sentence order or a Part   9.10 order.

  (6)   Paragraphs   (4)(f) and (g) and (5)(a), (b), (c) and (ia) to (kb) 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.

  (6A)   Protected information may be communicated by an Ombudsman official to an IGIS official for the purposes of the IGIS official exercising powers, or performing functions or duties, as an IGIS official.

  (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 of 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; or

  (i)   a proceeding under, or a proceeding relating to a matter arising under, a preventative detention order law (other than Division   105 of the Criminal Code ), so far as the proceeding relates to a preventative detention order (within the meaning of that preventative detention order law); or

  (j)   a proceeding under, or a proceeding relating to a matter arising under, a post - sentence detention law or a post - sentence supervision law.