New South Wales Consolidated Acts

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SURVEILLANCE DEVICES ACT 2007 - SECT 4

Definitions

4 Definitions

(1) In this Act:

"applicant" for a warrant means the law enforcement officer who applies, or on whose behalf an application is made, for the warrant.

"Australian Crime Commission" means the Australian Crime Commission established by the Australian Crime Commission Act 2002 of the Commonwealth.

"body-worn video" means equipment worn on the person of a police officer that is capable of recording visual images or sound or both.

"building" includes any structure.

"business day" means a day other than a Saturday, Sunday, public holiday or bank holiday in New South Wales.

"chief officer" means the following:
(a) in relation to the NSW Police Force-the Commissioner of Police,
(b) in relation to the Australian Crime Commission-the Chief Executive Officer of the Australian Crime Commission,
(c) in relation to the New South Wales Crime Commission-the Commissioner for the New South Wales Crime Commission,
(d) in relation to the Independent Commission Against Corruption-the Commissioner for the Independent Commission Against Corruption,
(e) in relation to the Law Enforcement Conduct Commission-the Chief Commissioner of that Commission, or
(f) any other person prescribed by the regulations as the chief officer in relation to a law enforcement agency.

"computer" means any electronic device for storing, processing or transferring information.

"corresponding emergency authorisation" means an authorisation in the nature of an emergency authorisation given under the provisions of a corresponding law, being an authorisation in relation to a relevant offence within the meaning of the corresponding law.

"corresponding law" means a law of another jurisdiction that:
(a) provides for the authorisation of the use of surveillance devices, and
(b) is declared by the regulations to be a corresponding law.

"corresponding warrant" means a warrant in the nature of a surveillance device warrant or retrieval warrant issued under the provisions of a corresponding law, being a warrant in relation to a relevant offence within the meaning of that corresponding law.

"data surveillance device" means any device or program capable of being used to record or monitor the input of information into or output of information from a computer, but does not include an optical surveillance device.

"device" includes instrument, apparatus and equipment.

"disciplinary proceeding" means a proceeding of a disciplinary nature under a law of any jurisdiction or of the Commonwealth.

"eligible Judge" is defined in section 5.

"eligible Magistrate" is defined in section 5.

"emergency authorisation" means an emergency authorisation given under Division 4 of Part 3.

"enhancement equipment" , in relation to a surveillance device, means equipment capable of enhancing a signal, image or other information obtained by use of the surveillance device.

"exercise" a function includes perform a duty.

"function" includes a power, authority or duty.

"Inspector" means the Inspector of the Law Enforcement Conduct Commission.

"install" includes attach.

"jurisdiction" means a State or Territory of the Commonwealth.

"law enforcement agency" means the following agencies:
(a) the NSW Police Force,
(b) the New South Wales Crime Commission,
(c) the Independent Commission Against Corruption,
(d) the Law Enforcement Conduct Commission,
(e) any other agency prescribed by the regulations for the purposes of this definition.

"law enforcement officer" means the following:
(a) in relation to the NSW Police Force-a member of the NSW Police Force,
(b) in relation to the New South Wales Crime Commission-an officer of the Commission within the meaning of the Crime Commission Act 2012 ,
(c) in relation to the Independent Commission Against Corruption-an officer of the Commission within the meaning of the Independent Commission Against Corruption Act 1988 ,
(d) in relation to the Law Enforcement Conduct Commission-an officer of the Commission within the meaning of the Law Enforcement Conduct Commission Act 2016 ,
(e) in relation to an agency prescribed for the purposes of paragraph (e) of the definition of
"law enforcement agency" -any person prescribed by the regulations as a law enforcement officer in respect of that agency for the purposes of this definition,
and includes a person who is seconded to a law enforcement agency, including (but not limited to) a member of the police force or police service or a police officer (however described) of another jurisdiction.

"listening device" means any device capable of being used to overhear, record, monitor or listen to a conversation or words spoken to or by any person in conversation, but does not include a hearing aid or similar device used by a person with impaired hearing to overcome the impairment and permit that person to hear only sounds ordinarily audible to the human ear.

"maintain" , in relation to a surveillance device, includes:
(a) adjust, relocate, repair or service the device, and
(b) replace a faulty device.

"optical surveillance device" means any device capable of being used to record visually or observe an activity, but does not include spectacles, contact lenses or a similar device used by a person with impaired sight to overcome that impairment.

"participating jurisdiction" means a jurisdiction in which a corresponding law is in force.

"party" :
(a) to an activity-means a person who takes part in the activity, and
(b) to a private conversation-means a person by or to whom words are spoken in the due course of the conversation or a person who, with the consent, express or implied, of any of the persons by or to whom words are spoken in the course of the conversation, records, monitors or listens to those words.

"premises" includes the following:
(a) land,
(b) a building,
(c) a part of a building,
(d) any place, whether built on or not,
whether in or outside this jurisdiction.

"principal party" , in relation to a private conversation, means a person by or to whom words are spoken in the course of the conversation.

"private conversation" means any words spoken by one person to another person or to other persons in circumstances that may reasonably be taken to indicate that any of those persons desires the words to be listened to only:
(a) by themselves, or
(b) by themselves and by some other person who has the consent, express or implied, of all of those persons to do so,
but does not include a conversation made in any circumstances in which the parties to it ought reasonably to expect that it might be overheard by someone else.

"protected information" has the meaning given to it by section 39.

"public officer" means a person employed by, or holding an office established by or under a law of, this jurisdiction or a person employed by a public authority of this jurisdiction, and includes a law enforcement officer.

"record" includes the following:
(a) an audio, visual or audio visual record,
(b) a record in digital form,
(c) a documentary record prepared from a record referred to in paragraph (a) or (b).

"relevant offence" means:
(a) an offence against a law of this jurisdiction or of the Commonwealth or another State or Territory that may be prosecuted on indictment, or
(b) an offence against the law of this jurisdiction that is prescribed by the regulations for the purposes of this definition.

"relevant proceeding" means the following:
(a) the prosecution of a relevant offence,
(b) a proceeding for the confiscation, forfeiture or restraint of property or for the imposition of a pecuniary penalty in connection with a relevant offence,
(c) a proceeding for the protection of a child or intellectually impaired person,
(d) a proceeding concerning the validity of a warrant, emergency authorisation, corresponding warrant or corresponding emergency authorisation,
(e) a disciplinary proceeding against a public officer,
(f) a coronial inquest or inquiry if, in the opinion of the coroner, the event that is the subject of the inquest or inquiry may have resulted from the commission of a relevant offence,
(g) a proceeding under section 13 of the Mutual Assistance in Criminal Matters Act 1987 of the Commonwealth in relation to a criminal matter that concerns an offence against the laws of the foreign country that made the request resulting in the proceeding, being an offence that may be prosecuted on indictment,
(h) a proceeding for the taking of evidence under section 43 of the Extradition Act 1988 of the Commonwealth, in so far as the proceeding relates to a relevant offence,
(i) a proceeding for the extradition of a person from another jurisdiction to this jurisdiction, in so far as the proceeding relates to a relevant offence,
(j) a proceeding under Division 1 of Part 4 of the International War Crimes Tribunals Act 1995 of the Commonwealth,
(k) a proceeding of the International Criminal Court,
(l) a compulsory examination or public inquiry before the Independent Commission Against Corruption or an inquiry before the Inspector of the Independent Commission Against Corruption,
(m) a public or private examination before an examining Commissioner (within the meaning of the Law Enforcement Conduct Commission Act 2016 ) or an inquiry before the Inspector of the Law Enforcement Conduct Commission,
(n) a hearing before the New South Wales Crime Commission,
(o) an examination before the Australian Crime Commission,
(p) any proceeding in respect of a declaration under Part 2, or a control order under Division 1 or 2 of Part 3, of the Crimes (Criminal Organisations Control) Act 2012 .

"remote application" for a warrant means an application referred to in section 18 or 26.

"report" of a conversation or activity includes a report of the substance, meaning or purport of the conversation or activity.

"retrieval warrant" means a warrant issued under Division 3 of Part 3.

"senior officer" means the following:
(a) in relation to the NSW Police Force:
(i) the Commissioner of Police, or
(ii) any Deputy Commissioner of Police, or
(iii) any Assistant Commissioner of Police, or
(iv) any Superintendent of Police,
(b) in relation to the New South Wales Crime Commission-the Commissioner for the New South Wales Crime Commission,
(c) in relation to the Independent Commission Against Corruption-the Commissioner for the Independent Commission Against Corruption,
(d) in relation to the Law Enforcement Conduct Commission-the Chief Commissioner of the Law Enforcement Conduct Commission,
(e) in relation to any other agency prescribed by the regulations for the purposes of the definition of
"law enforcement agency" -any officer prescribed by the regulations for the purposes of this definition for that agency.

"serious narcotics offence" means an offence under Division 2 of Part 2 of the Drug Misuse and Trafficking Act 1985 but does not include an offence that is declared by the regulations not to be a serious narcotics offence for the purposes of this Act.

"surveillance device" means:
(a) a data surveillance device, a listening device, an optical surveillance device or a tracking device, or
(b) a device that is a combination of any 2 or more of the devices referred to in paragraph (a), or
(c) a device of a kind prescribed by the regulations.

"surveillance device warrant" means a warrant issued under Division 2 of Part 3 or under section 35 (3).

"this jurisdiction" means New South Wales.

"tracking device" means any electronic device capable of being used to determine or monitor the geographical location of a person or an object.

"unsworn application" for a warrant means an application referred to in section 17 (4) or 25 (4).

"use" of a surveillance device includes use of the device to record a conversation or other activity.

"vehicle" includes the following:
(a) an aircraft,
(b) a vessel,
(c) a part of a vehicle,
whether in or outside this jurisdiction.

"warrant" means surveillance device warrant or retrieval warrant.
Note : The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.
(2) For the purposes of this Act, an investigation into an offence against the law of this jurisdiction is taken to be conducted in this jurisdiction (whether or not it is also conducted in another jurisdiction) if a law enforcement officer of this jurisdiction participates in the investigation.
Note : Subsection (2) is intended to cover the situation where an officer of this jurisdiction is conducting or participating in an investigation wholly in another jurisdiction for the purposes of an offence against a law of this jurisdiction (eg a NSW officer is investigating a conspiracy to import drugs into NSW from Victoria, and all the evidence of the offence is in Victoria).
(3) A thing is not precluded from being a listening device within the meaning of this Act merely because it is also capable of:
(a) recording or transmitting visual images (for example a video camera), or
(b) recording or transmitting its own position.
(4) A reference in this Act to:
(a) a report of a private conversation includes a reference to a report of the substance, meaning or purport of the conversation, and
(b) a record of a private conversation includes a reference to a statement prepared from such a record.
(5) A reference in this Act to the retrieval of a surveillance device includes, in relation to a data surveillance device, a reference to the removal or erasure of the device.
(6) Notes included in this Act do not form part of this Act.



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