New South Wales Consolidated Acts

SURVEILLANCE DEVICES ACT 2007 - SECT 40

40 Prohibition on use, communication or publication of protected information

(1) A person is guilty of an offence if:

(a) the person intentionally, knowingly or recklessly uses, communicates or publishes any information, and

(b) the person knows that, or is reckless as to whether, the information is protected information, and

(c) the person knows that, or is reckless as to whether, the use, communication or publication of the information is prohibited by this section.

Maximum penalty: Imprisonment for 2 years.

Note: Under section 16 of the Crimes (Sentencing Procedure) Act 1999 , a court may impose a fine on a body corporate that commits this offence or an offence under subsection (2).

(2) A person is guilty of an offence against this subsection if the person commits an offence against subsection (1) in circumstances in which the person:

(a) intends to endanger the health or safety of any person or prejudice the effective conduct of an investigation into a relevant offence, or

(b) knows that, or is reckless as to whether, the disclosure of the information:

(i) endangers or will endanger the health or safety of any person, or

(ii) prejudices or will prejudice the effective conduct of an investigation into a relevant offence.

Maximum penalty: Imprisonment for 7 years.

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

(a) the use, communication or publication of:

(i) any information that has been disclosed in proceedings in open court, or

(ii) any information that has entered the public domain, 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 threat of serious violence to a person, substantial damage to property or the commission of a serious narcotics offence, or

(c) the communication to the Director-General (within the meaning of the Australian Security Intelligence Organisation Act 1979 of the Commonwealth) of protected information that relates or appears to relate to activities prejudicial to security (within the meaning of that Act), or

(d) the use or communication of information referred to in paragraph (c) by an officer of the Australian Security Intelligence Organisation in the performance of his or her official functions, or

(e) the use or communication of information to a foreign country or an appropriate authority of a foreign country in accordance with the Mutual Assistance in Criminal Matters Act 1987 of the Commonwealth.

(4) Protected information may be used, published or communicated if it is necessary to do so for any of the following purposes:

(a) the investigation of a relevant offence within the meaning of this Act or a relevant offence within the meaning of a corresponding law,

(b) the making of a decision whether or not to bring a prosecution for a relevant offence within the meaning of this Act or a relevant offence within the meaning of a corresponding law,

(c) a relevant proceeding within the meaning of this Act or a relevant proceeding within the meaning of a corresponding law,

(d) an investigation of a complaint against, or the conduct of, a public officer within the meaning of this Act or a public officer within the meaning of a corresponding law and the oversight of such an investigation,

(e) the making of a decision in relation to the appointment, re-appointment, term of appointment, promotion or retirement of a person referred to in paragraph (d) or the making of any managerial decision with respect to such a person,

(f) the keeping of records and making of reports by:

(i) a law enforcement agency in accordance with the obligations imposed by Division 2, or

(ii) a law enforcement agency (within the meaning of a corresponding law) in accordance with the obligations imposed by provisions of the corresponding law that correspond to Division 2,

(g) an inspection by the Ombudsman under section 48 or an inspection under a provision of a corresponding law that corresponds to section 48,

(h) an inquiry or investigation under the Privacy and Personal Information Protection Act 1998 or of the law of a participating jurisdiction or of the Commonwealth concerning the privacy of personal information.

(5) Without limiting subsection (4), protected information may be communicated or published by a law enforcement officer to any person with the consent of the chief officer of the law enforcement agency of which the officer is a member.

(6) A chief officer may consent to the communication of protected information under subsection (5) only if satisfied that it is necessary or desirable in the public interest for the protected information to be communicated to the person concerned and that the public interest in communicating the information outweighs any intrusion on the privacy of the person to whom it relates or of any other person who may be affected by its communication.

(7) In deciding whether to give consent the chief officer must take into consideration the manner in which the protected information will be dealt with after it is communicated to the person concerned.

(8) Subsections (3) (c) and (d) and (4) (a), (b) and (c) do not authorise the use, communication or publication of protected information in respect of the use of a surveillance device in an emergency without a warrant or in respect of an emergency authorisation or corresponding emergency authorisation unless the use of powers without the warrant or under that authorisation has been approved under section 35 or the provisions of a corresponding law that correspond to section 35.

(9) A reference in subsection (4) to a relevant offence is a reference to any relevant offence, whether or not it is the offence in respect of which the relevant surveillance device was used or the warrant or emergency authorisation was issued or given.