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This is a Bill, not an Act. For current law, see the Acts databases.
TASMANIA
__________
POLICE POWERS (SURVEILLANCE DEVICES)
BILL 2006
__________
CONTENTS
PART 1 PRELIMINARY
1. Short title
2. Commencement
3. Interpretation
4. Meaning of reckless
5. Relationship to other laws and matters
6. Act binds Crown
PART 2 WARRANTS
Division 1 Introduction
7. Types of warrant
8. Who may issue warrants?
Division 2 Surveillance device warrants
9. Application for surveillance device warrant
10. Remote application
11. Determining the application
12. What must a surveillance device warrant contain?
13. What a surveillance device warrant authorises
14. Extension and variation of surveillance device warrant
15. Revocation of surveillance device warrant
[Bill 34]-I
16. Discontinuance of use of surveillance device under warrant
Division 3 Retrieval warrants
17. Application for retrieval warrant
18. Remote application
19. Determining the application
20. What must a retrieval warrant contain?
21. What a retrieval warrant authorises
22. Revocation of retrieval warrant
PART 3 EMERGENCY AUTHORISATIONS
23. Emergency authorisation risk of serious personal violence or
substantial property damage
24. Emergency authorisation continued use of authorised
surveillance device in participating jurisdiction
25. Application for approval after use of surveillance device under
emergency authorisation
26. Consideration of application
27. Approval of emergency use of powers
28. Admissibility of evidence
29. Report to Supreme Court or magistrate
PART 4 RECOGNITION OF CORRESPONDING WARRANTS AND
EMERGENCY AUTHORISATIONS
30. Corresponding warrants
31. Corresponding emergency authorisations
PART 5 COMPLIANCE AND MONITORING
Division 1 Restrictions on use, communication and publication of
information
32. Interpretation
33. Prohibition on communication or publication of protected
information
34. Dealing with records obtained by use of surveillance devices
35. Protection of surveillance device technologies and methods
36. Protected information in custody of court
2
Division 2 Reporting and record-keeping
37. Keeping documents connected with warrants and emergency
authorisations
38. Other records to be kept
39. Register of warrants and emergency authorisations
Division 3 Inspections
40. Appointment of inspection entity
41. Inspection of records by inspection entity
42. Report on inspection
Division 4 General
43. Evidentiary certificates
PART 6 GENERAL
44. Annual reports
45. Regulations
46. Administration of Act
47. Consequential Amendments
SCHEDULE 1 CONSEQUENTIAL AMENDMENTS
3
4
POLICE POWERS (SURVEILLANCE DEVICES)
BILL 2006
(Brought in by the Minister for Justice and Workplace
Relations, the Honourable Steven Kons)
A BILL FOR
An Act to provide for the installation, use, maintenance
and retrieval of surveillance devices in criminal
investigations within and extending beyond this
jurisdiction and for other matters
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
PART 1 PRELIMINARY
1. Short title
This Act may be cited as the Police Powers
(Surveillance Devices) Act 2006.
2. Commencement
This Act commences on a day to be proclaimed.
3. Interpretation
(1) In this Act, unless the contrary intention
appears
[Bill 34] 5
Police Powers (Surveillance Devices) Act 2006
Act No. of
s. 3 Part 1 Preliminary
"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;
"business day" means a day other than a
Saturday, a Sunday or a statutory holiday
under the Statutory Holidays Act 2000;
"chief officer" means the person for the time
being holding office as
(a) in relation to the Police Service,
the Commissioner of Police; or
(b) in relation to the Australian
Crime Commission, the Chief
Executive Officer of the
Australian Crime Commission;
"computer" means any electronic device for
storing or processing information;
"corresponding emergency authorisation"
means an authorisation given under the
provisions of a corresponding law that
correspond to Part 3;
"corresponding law" means a law of another
jurisdiction that corresponds to this Act,
and includes a law of another jurisdiction
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Part 1 Preliminary s. 3
that is declared by the regulations to
correspond to this Act;
"corresponding warrant" means a warrant
issued under the provisions of a
corresponding law that correspond to
Part 2;
"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 any jurisdiction or of the
Commonwealth;
"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;
"install" includes attach;
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s. 3 Part 1 Preliminary
"jurisdiction" means a State or Territory of
the Commonwealth;
"law enforcement agency" means
(a) the Police Service; or
(b) the Australian Crime
Commission;
"law enforcement officer" means
(a) in relation to the Police Service, a
police officer; and
(b) in relation to the Australian
Crime Commission, a member of
staff of the Australian Crime
Commission
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, and 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;
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Part 1 Preliminary s. 3
"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;
"premises" includes
(a) land and a structure, building,
caravan, vehicle or vessel,
whether temporary or not and
whether under construction or
not; and
(b) a place, whether enclosed or built
on or not and whether on, within,
over or under land or water; and
(c) a part of premises, including
premises referred to in
paragraph (a) or (b);
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s. 3 Part 1 Preliminary
"protected information" has the meaning
given in section 32;
"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
(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);
"relevant offence" means
(a) an offence against the law of this
jurisdiction punishable by a
maximum term of imprisonment
of 3 years or more; or
(b) an offence against the law of this
jurisdiction that is prescribed by
the regulations;
"relevant proceeding" means
(a) the prosecution of a relevant
offence; or
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Part 1 Preliminary s. 3
(b) a bail application, or a review of
a decision to grant or refuse a bail
application, in relation to a
relevant offence; or
(c) a proceeding with a view to the
committal of a person to stand for
trial for a relevant offence; or
(d) an application for the exercise of
a power in relation to a relevant
offence
(i) to a court or judicial
officer; or
(ii) by a law enforcement
officer to anyone under
this Act; or
(e) a proceeding for the confiscation,
forfeiture or restraint of property
or for the imposition of a
pecuniary penalty in connection
with a relevant offence; or
(f) a proceeding for the protection of
a child or a person with a
disability within the meaning of
the Guardianship and
Administration Act 1995; or
(g) a proceeding concerning the
validity of a warrant, emergency
authorisation, corresponding
warrant or corresponding
emergency authorisation; or
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s. 3 Part 1 Preliminary
(h) a disciplinary proceeding against
a public officer; or
(i) 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
(j) 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
punishable by a maximum term
of imprisonment of 3 years or
more; or
(k) 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; or
(l) 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; or
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Part 1 Preliminary s. 3
(m) a proceeding under Division 1 of
Part 4 of the International War
Crimes Tribunals Act 1995 of the
Commonwealth; or
(n) a proceeding of the International
Criminal Court;
"remote application", for a warrant, means
an application referred to in section 10 or
18;
"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;
"senior officer" means a person for the time
being holding office as
(a) in relation to the Police Service, a
police officer of or above the
rank of inspector; or
(b) in relation to the Australian
Crime Commission, the Chief
Executive Officer of the
Australian Crime Commission or
an examiner within the meaning
of the Australian Crime
Commission Act 2002 of the
Commonwealth;
"surveillance device" means
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s. 3 Part 1 Preliminary
(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 section 27(3);
"this jurisdiction" means Tasmania;
"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 9(4)
or section 17(4);
"use", of a surveillance device, includes use
of the device to monitor or record a
conversation or other activity;
"vehicle" includes aircraft and vessel;
"warrant" means surveillance device warrant
or retrieval warrant.
(2) For the purposes of this Act, an investigation
into a relevant offence is taken to be conducted
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Part 1 Preliminary s. 4
in this jurisdiction (whether or not it is also
conducted in another jurisdiction) if a law
enforcement officer 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 of this jurisdiction
(e.g. Tasmanian officer is investigating a conspiracy to import drugs into
Tasmania from Victoria, and all the evidence of the offence is in
Victoria).
(3) A note included in this Act does not form part of
the Act.
4. Meaning of reckless
(1) A person is "reckless" in relation to a
circumstance if
(a) the person is aware of a substantial risk
that the circumstance exists or will exist;
and
(b) having regard to the circumstances
known to the person, it is unjustifiable to
take the risk.
(2) A person is "reckless" in relation to a result if
(a) the person is aware of a substantial risk
that the result will happen; and
(b) having regard to the circumstances
known to the person, it is unjustifiable to
take the risk.
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Act No. of
s. 5 Part 1 Preliminary
(3) It is a question of fact as to whether taking a risk
is unjustifiable.
5. Relationship to other laws and matters
(1) This Act is not intended to affect any other law
of this jurisdiction that prohibits or regulates the
use of surveillance devices wholly within this
jurisdiction.
(2) This Act is not intended to limit a discretion that
a court has
(a) to admit or exclude evidence in any
proceedings; or
(b) to stay criminal proceedings in the
interests of justice.
(3) For the avoidance of doubt, it is intended that a
warrant may be issued, or an emergency
authorisation given, in this jurisdiction under this
Act for the installation, use, maintenance or
retrieval of a surveillance device in this
jurisdiction or a participating jurisdiction, or
both.
(4) A function conferred under this Act in relation to
the activities of the Australian Crime
Commission is only conferred for the purpose of
the function conferred on the Australian Crime
Commission under the Australian Crime
Commission (Tasmania) Act 2004 relating to
suspected serious and organised crime as defined
under that Act.
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Part 1 Preliminary s. 6
(5) This Act does not stop a law enforcement officer
from using an optical surveillance device in a
place where the presence of a police officer is
not an offence.
(6) The following Acts do not apply to activities and
records under this Act:
(a) the Archives Act 1983;
(b) the Freedom of Information Act 1991;
(c) the Personal Information Protection Act
2004.
6. Act binds Crown
(1) This Act binds the Crown in right of Tasmania
and, so far as the legislative power of Parliament
permits, in all its other capacities.
(2) Nothing in this Act makes the Crown liable to be
prosecuted for an offence.
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Act No. of
s. 7 Part 2 Warrants
PART 2 WARRANTS
Division 1 Introduction
7. Types of warrant
(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 in respect of one or
more kinds of surveillance device.
8. Who may issue warrants?
(1) The Supreme Court may issue any warrant under
this Part.
(2) A magistrate may issue
(a) a surveillance device warrant other than a
warrant that authorises the investigation
into a relevant offence which is being,
will be or is likely to be conducted
wholly or partly in a participating
jurisdiction; or
(b) a retrieval warrant in respect of a
surveillance device authorised under a
warrant referred to in paragraph (a).
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Part 2 Warrants s. 9
(3) If the law enforcement officer to whom an
authority has been issued by a magistrate under
subsection (2) becomes aware of the likelihood
that the investigation will or is likely to be
conducted wholly or partly in a participating
jurisdiction, the law enforcement officer may
apply to the Supreme Court for a warrant or for
the variation or amendment of the warrant issued
under subsection (2) to authorise the
investigation to be conducted in the participating
jurisdiction.
Division 2 Surveillance device warrants
9. Application for surveillance device warrant
(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 on reasonable grounds
suspects or believes that
(a) a relevant offence has been, is being, is
about to be or is likely to be committed;
and
(b) an investigation into that offence is
being, will be or is likely to be conducted
in this jurisdiction, in this and one or
more participating jurisdictions or in one
or more participating jurisdictions; and
(c) the use of a surveillance device is or will
be necessary in the course of that
investigation for the purpose of enabling
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s. 9 Part 2 Warrants
evidence or information to be obtained of
the commission of the relevant offence or
the identity or location of the offender.
(2) The application may be made to
(a) the Supreme Court in any case; or
(b) a magistrate in the case of an application
for a surveillance device warrant that
authorises the use of a device for the
purpose of investigating a relevant
offence that is being, is about to be or is
likely to be committed in this
jurisdiction.
(3) 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
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 and the
prescribed information (if any).
(4) If a law enforcement officer believes that
(a) the immediate use of a surveillance
device is necessary for a purpose referred
to in subsection (1)(c); and
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Act No. of
Part 2 Warrants s. 9
(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.
(5) If subsection (4) applies, the applicant must
(a) provide as much information as the
Supreme Court or magistrate 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 Supreme Court or
magistrate, whether or not a warrant has
been issued.
(6) The Supreme Court or a magistrate must hear an
application for a warrant in the absence of
anyone other than the following:
(a) the applicant;
(b) someone the judge or magistrate permits
to be present;
(c) a lawyer representing anyone mentioned
in paragraphs (a) and (b).
(7) Also the Supreme Court or magistrate must hear
the application
(a) in the absence of the person proposed to
be placed under surveillance (the
"relevant person") or anyone likely to
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s. 10 Part 2 Warrants
inform the relevant person of the
application; and
(b) without the relevant person having been
informed of the application.
10. Remote application
(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 9 by telephone, fax, email 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 Supreme Court or
magistrate who is to determine the application.
11. Determining the application
(1) The Supreme Court or a magistrate may issue a
surveillance device warrant if satisfied
(a) that there are reasonable grounds for the
suspicion or belief 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 prepared or
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Part 2 Warrants s. 11
sworn 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 surveillance device
warrant should be issued, the judge or magistrate
must have regard to
(a) the nature and seriousness of the alleged
offence in respect of which the warrant is
sought; and
(b) the extent to which the privacy of any
person is likely to be affected; and
(c) the existence of any alternative means of
obtaining the evidence or information
sought to be obtained and the extent to
which those means may assist or
prejudice the investigation; and
(d) the evidentiary or intelligence value of
any information sought to be obtained;
and
(e) any previous warrant sought or issued
under this Division, a corresponding law
(if known) or the Listening Devices Act
1991 in connection with the same
offence.
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s. 12 Part 2 Warrants
12. What must a surveillance device warrant contain?
(1) A surveillance device warrant must
(a) state that the Supreme Court or
magistrate is satisfied of the matters
referred to in section 11(1) and has had
regard to the matters referred to in
section 11(2); and
(b) specify
(i) the name of the applicant; and
(ii) the alleged offence in respect of
which the warrant is issued; and
(iii) the date on which and the time at
which the warrant is issued; and
(iv) the kind of surveillance device
authorised to be used; and
(v) if the warrant authorises the use
of a surveillance device on
premises, the premises on which
the use of the surveillance device
is authorised or to which entry is
authorised in relation to the use
of a surveillance device on other
premises; and
(vi) if the warrant authorises the use
of a surveillance device in or on
an object or class of objects, the
object or class of objects in or on
24
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Part 2 Warrants s. 12
which the use of the surveillance
device is authorised; and
(vii) if the warrant authorises the use
of a surveillance device in respect
of the conversations, activities or
geographical location of a person,
the name of the person (if
known); and
(viii) if the warrant authorises the use
of a surveillance device in a
participating jurisdiction, the
participating jurisdiction in which
it may be used; 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; and
(xii) the time within which a report in
respect of the warrant must be
made to the Supreme Court or
magistrate under section 29.
(2) In the case of a warrant referred to in
subsection (1)(b)(vii), if the identity of the
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Act No. of
s. 13 Part 2 Warrants
person is unknown, the warrant must state that
fact.
(3) A warrant must be signed by the person issuing
it and include their name.
(4) If the Supreme Court or a magistrate issues a
warrant on a remote application
(a) the Supreme Court or magistrate must
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 cause those details to be recorded
and kept by the Supreme Court or
magistrate; and
(b) the Supreme Court or magistrate must
provide the applicant with a signed copy
of the warrant as soon as practicable.
13. What a surveillance device warrant authorises
(1) A surveillance device warrant may authorise, as
specified in the warrant, any 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 objects;
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Part 2 Warrants s. 13
(c) the use of a surveillance device in respect
of the conversations, activities or
geographical 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
subsection (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, or 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
subsection (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
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s. 13 Part 2 Warrants
object, or an object of the class, is
reasonably believed to be or is
likely to be, or 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
subsection (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 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 any enhancement equipment
in relation to the surveillance device; and
(c) the temporary removal of an object from
any place where it is situated for the
purpose of the installation, maintenance
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Part 2 Warrants s. 13
or retrieval of the surveillance device or
enhancement equipment and the return of
the object to that place or another
appropriate place; and
(d) the breaking open of anything for the
purpose of the installation, maintenance
or retrieval of the surveillance device or
enhancement equipment; and
(e) the connection of the device or
equipment to an electricity supply system
and the use of electricity from that
system to operate the surveillance device
or enhancement 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 executing 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
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s. 14 Part 2 Warrants
retrieval of a surveillance device or enhancement
equipment under the warrant.
(5) A law enforcement officer may use a
surveillance device under a warrant only if he or
she is acting in the performance of his or her
duty.
(6) This section applies to a warrant subject to any
conditions specified in the warrant.
(7) Nothing in this section authorises the doing of
anything for which a warrant would be required
under the Telecommunications (Interception) Act
1979 of the Commonwealth.
14. Extension and variation of surveillance device
warrant
(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
(a) the Supreme Court, if the warrant was
issued by a judge or the extension or
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Part 2 Warrants s. 15
variation of the terms of the warrant was
to authorise the investigation into a
relevant offence that is being, will be or
is likely to be conducted wholly or partly
in a participating jurisdiction; or
(b) a magistrate, if the warrant was issued by
a magistrate.
(3) Sections 9 and 10 apply, with any necessary
changes, to an application under this section as if
it were an application for the warrant.
(4) The Supreme Court or magistrate may grant an
application, subject to any conditions he or she
thinks fit, if satisfied that the matters referred to
in section 11(1) still exist, having regard to the
matters in section 11(2).
(5) If the Supreme Court or magistrate grants the
application, the Supreme Court or magistrate
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.
15. Revocation of surveillance device warrant
(1) A surveillance device warrant may be revoked at
any time before the expiration of the period of
validity specified in it by
(a) the Supreme Court, if the Supreme Court
issued the warrant or the extension or
variation of the warrant; or
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s. 16 Part 2 Warrants
(b) a magistrate, if a magistrate issued the
warrant.
(2) The Supreme Court or a magistrate may revoke a
surveillance device warrant after receiving a
report under section 29 in respect of the warrant.
(3) The Supreme Court or magistrate who revokes a
warrant must give notice of the revocation to the
chief officer of the law enforcement agency of
which the law enforcement officer to whom the
warrant was issued is a member.
(4) If the chief officer is notified that the warrant has
been revoked, he or she must take the steps
necessary to ensure that use of the surveillance
device authorised by the warrant is discontinued
immediately.
16. Discontinuance of use of surveillance device under
warrant
(1) This section applies if a surveillance device
warrant is issued to a law enforcement officer of
a law enforcement agency.
(2) 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 of enabling
evidence to be obtained of the commission of the
relevant offence or the identity or location of the
offender, he or she must inform the chief officer
of the law enforcement agency immediately.
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(3) If the chief officer of the law enforcement
agency is satisfied that the use of a surveillance
device under the warrant 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 take the steps
necessary to ensure that use of the surveillance
device authorised by the warrant is discontinued
as soon as practicable.
Division 3 Retrieval warrants
17. Application for retrieval warrant
(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 or a surveillance device warrant issued
under a corresponding law and which the law
enforcement officer on reasonable grounds
suspects or believes 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
(a) the Supreme Court in the case of a device
installed under a warrant issued by the
Supreme Court; or
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s. 17 Part 2 Warrants
(b) a magistrate in the case of a device
installed under a warrant issued by a
magistrate.
(3) Subject to this section, an application must be
supported by an affidavit setting out the grounds
on which the 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 an application
for a warrant is made
an application for a warrant 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
Supreme Court or magistrate 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 Supreme Court or
magistrate who determined the
application, whether or not a warrant has
been issued.
(6) The Supreme Court or a magistrate must hear an
application for a warrant in the absence of
anyone other than the following:
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Part 2 Warrants s. 18
(a) the applicant;
(b) someone the Supreme Court or
magistrate permits to be present;
(c) a lawyer representing anyone mentioned
in paragraphs (a) and (b).
(7) Also the Supreme Court or magistrate must hear
the application
(a) in the absence of the person who was
proposed to be placed under surveillance
(the "relevant person") or anyone likely
to inform the relevant person of the
application; and
(b) without the relevant person having been
informed of the application.
18. Remote application
(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 17 by telephone, fax,
email 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 Supreme Court or
magistrate who is to determine the application.
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Police Powers (Surveillance Devices) Act 2006
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s. 19 Part 2 Warrants
19. Determining the application
(1) A Supreme Court or a magistrate may issue a
retrieval warrant if the Supreme Court or
magistrate is satisfied
(a) that there are reasonable grounds for the
suspicion or belief 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 prepared or
sworn 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 Supreme Court or
magistrate 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.
20. What must a retrieval warrant contain?
(1) A retrieval warrant must
(a) state that the Supreme Court or
magistrate is satisfied of the matters
36
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Part 2 Warrants s. 20
referred to in section 19(1) and has had
regard to the matters referred to in
section 19(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; and
(viii) the time within which a report in
respect of the warrant must be
made to the Supreme Court or
magistrate under section 29.
(2) A warrant must be signed by the person issuing
it and include their name.
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s. 21 Part 2 Warrants
(3) If the Supreme Court or a magistrate issues a
warrant on a remote application
(a) the Supreme Court or magistrate must
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 cause those details to be entered in a
register kept by the Supreme Court or
magistrate for the purpose; and
(b) the Supreme Court or magistrate must
provide the applicant with a copy of the
warrant as soon as practicable.
21. What a retrieval warrant authorises
(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, or other
premises adjoining or providing access to
those premises, for the purpose of
retrieving the device and equipment; and
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Part 2 Warrants s. 21
(c) the breaking open of any thing for the
purpose of the retrieval of the device and
equipment; and
(d) if the device or equipment is installed on
or in an object, the temporary removal of
the object from any place where it is
situated for the purpose of the retrieval of
the device and equipment and the return
of the object to that place or another
appropriate place; and
(e) the provision of assistance or technical
expertise to the law enforcement officer
primarily responsible for executing 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.
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Police Powers (Surveillance Devices) Act 2006
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s. 22 Part 2 Warrants
22. Revocation of retrieval warrant
(1) A retrieval warrant may be revoked at any time
before the expiration of the period of validity
specified in it by
(a) the Supreme Court, if the Supreme Court
issued the warrant; or
(b) a magistrate, if a magistrate issued the
warrant.
(2) The Supreme Court or a magistrate may revoke a
retrieval warrant after receiving a report under
section 29 in respect of the warrant.
(3) 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.
(4) If the chief officer of a law enforcement agency
is satisfied that the grounds for issue of a
retrieval warrant to a law enforcement officer of
the agency no longer exist, the chief officer must
cause an application to be made for the
revocation of the warrant under this section.
(5) The Supreme Court or magistrate who revokes a
warrant must give notice of the revocation to the
chief officer of the law enforcement agency of
which the law enforcement officer to whom the
warrant was issued is a member.
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Part 2 Warrants s. 22
(6) If notice is given under subsection (5) for a
retrieval warrant, the warrant ceases to have
effect.
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Police Powers (Surveillance Devices) Act 2006
Act No. of
s. 23 Part 3 Emergency Authorisations
PART 3 EMERGENCY AUTHORISATIONS
23. Emergency authorisation risk of serious personal
violence or substantial property damage
(1) A law enforcement officer of a law enforcement
agency may apply to a senior officer of the
agency for an emergency authorisation for the
use of a surveillance device if, in the course of
an investigation, the law enforcement officer on
reasonable grounds suspects or believes that
(a) an imminent threat 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 threat; 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) An application may be made orally, in writing or
by telephone, fax, email or any other means of
communication.
(3) A senior officer may give an emergency
authorisation for the use of a surveillance device
on an application under subsection (1) if
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Part 3 Emergency Authorisations s. 24
satisfied that there are reasonable grounds for the
suspicion or belief founding the application.
(4) An emergency authorisation given under this
section may authorise the law enforcement
officer to whom it is given to do anything that a
surveillance device warrant may authorise law
enforcement officers to do.
24. Emergency authorisation continued use of
authorised surveillance device in participating
jurisdiction
(1) A law enforcement officer of a law enforcement
agency may apply to a senior officer of the
agency for an emergency authorisation for the
use of a surveillance device if
(a) use of the surveillance device in this
jurisdiction was authorised under a law
of this jurisdiction, in connection with an
investigation into a relevant offence; and
(b) the law enforcement officer on
reasonable grounds suspects or believes
that
(i) the investigation in relation to
which the surveillance device is
authorised in this jurisdiction is
likely to extend to a participating
jurisdiction; and
(ii) the use of the surveillance device
in a participating jurisdiction is
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s. 24 Part 3 Emergency Authorisations
immediately necessary to prevent
the loss of any evidence; and
(iii) the circumstances are so serious
and the matter is of such urgency
that the use of the surveillance
device in the participating
jurisdiction is warranted; and
(iv) it is not practicable in the
circumstances to apply for a
surveillance device warrant.
(2) An application may be made orally, in writing or
by telephone, fax, email or any other means of
communication.
(3) A senior officer may give an emergency
authorisation for the use of a surveillance device
on an application under subsection (1) if
satisfied that
(a) use of the surveillance device in this
jurisdiction is authorised under a law of
this jurisdiction, in connection with an
investigation into a relevant offence; and
(b) there are reasonable grounds for the
suspicion or belief founding the
application.
(4) An emergency authorisation given under this
section may authorise the law enforcement
officer to whom it is given to do anything that a
surveillance device warrant may authorise him
or her to do.
44
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Part 3 Emergency Authorisations s. 25
25. Application for approval after use of surveillance
device under emergency authorisation
(1) Within 2 business days after giving an
emergency authorisation, a senior officer (or
another person on his or her behalf) must apply
to the Supreme Court or a magistrate for
approval of the exercise of powers under the
emergency authorisation.
(2) The application may be made to
(a) the Supreme Court in any case; or
(b) a magistrate in the case of an application
for the exercise of powers under the
emergency authorisation authorising the
use of a device within this jurisdiction
only.
(3) An application
(a) must specify
(i) the name of the applicant; and
(ii) the kind of surveillance device
sought to be approved 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.
(4) The Supreme Court or magistrate may refuse to
consider the application until the applicant gives
the Supreme Court or magistrate all the
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Act No. of
s. 26 Part 3 Emergency Authorisations
information the Supreme Court or magistrate
requires about the application in the way the
Supreme Court or magistrate requires.
(5) The Supreme Court or a magistrate must hear an
application for the approval of the exercise of
powers under an emergency authorisation in the
absence of anyone other than the following:
(a) the applicant;
(b) someone the Supreme Court or
magistrate permits to be present;
(c) a lawyer representing anyone mentioned
in paragraphs (a) and (b).
(6) Also the Supreme Court or magistrate must hear
the application
(a) in the absence of the person placed under
or proposed to be placed under
surveillance (the "relevant person") or
anyone likely to inform the relevant
person of the application; and
(b) without the relevant person having been
informed of the application.
26. Consideration of application
(1) Before deciding an application for approval in
respect of an emergency authorisation given
under section 23, the Supreme Court or a
magistrate must, in particular, and being mindful
46
Police Powers (Surveillance Devices) Act 2006
Act No. of
Part 3 Emergency Authorisations s. 26
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 in
respect of an emergency authorisation given
under section 24, the Supreme Court 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 loss of evidence;
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Police Powers (Surveillance Devices) Act 2006
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s. 27 Part 3 Emergency Authorisations
(b) the extent to which issuing a surveillance
device warrant would have helped reduce
or avoid the risk;
(c) the terms of the existing authorisation for
the use of the surveillance device;
(d) whether or not it was practicable in the
circumstances to apply for a surveillance
device warrant.
27. Approval of emergency use of powers
(1) After considering an application for approval in
respect of an emergency authorisation given
under section 23, the Supreme Court or
magistrate may approve the application if
satisfied that there were reasonable grounds to
suspect or believe 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 in
respect of an emergency authorisation given
under section 24, the Supreme Court may
approve the application if satisfied that
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Part 3 Emergency Authorisations s. 27
(a) use of the surveillance device in this
jurisdiction was authorised under a law
of this jurisdiction, in connection with an
investigation into a relevant offence; and
(b) there were reasonable grounds to suspect
or believe that
(i) there was a risk of loss of
evidence; and
(ii) using the surveillance device in a
participating jurisdiction may
have helped reduce the risk; and
(c) it was not practicable in the
circumstances to apply for a surveillance
device warrant.
(3) If the Supreme Court or magistrate approves an
application for approval of the exercise of
powers under an emergency authorisation, the
Supreme Court or magistrate may issue a
surveillance device warrant for the continued use
of the surveillance device as if the application
were an application for a surveillance device
warrant under Division 2 of Part 2.
(4) If the Supreme Court or magistrate does not
approve an application under this section, the
Supreme Court or magistrate may order that the
use of the surveillance device cease.
(5) In any case, the Supreme Court or a magistrate
may order that any information obtained from or
relating to the exercise of powers under the
emergency authorisation or any record of that
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s. 28 Part 3 Emergency Authorisations
information be dealt with in the way specified in
the order.
28. Admissibility of evidence
If the exercise of powers under an emergency
authorisation is approved under section 27,
evidence obtained because of the exercise of
those powers is not inadmissible in any
proceeding only because the evidence was
obtained before the approval.
29. Report to Supreme Court or magistrate
(1) A law enforcement officer to whom a warrant is
issued, or who is primarily responsible for
executing a warrant issued, under this Act must
make a report in accordance with this section to
the Supreme Court or magistrate who issued the
warrant.
(2) The report must be made
(a) within the time stated in the warrant; or
(b) if the warrant is revoked before the end
of the time stated in the warrant, as soon
as practicable after the warrant is
revoked and within the time stated in the
warrant.
(3) In the case of a surveillance device warrant, the
report must
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Police Powers (Surveillance Devices) Act 2006
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Part 3 Emergency Authorisations s. 29
(a) state whether the warrant was executed;
and
(b) if it was executed
(i) state the name of the person
primarily responsible for the
execution of the warrant; 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 geographical
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
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s. 29 Part 3 Emergency Authorisations
(viii) give details of any object in or on
which the device was installed or
any premises where the object
was located when the device was
installed; and
(ix) 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) give details of the compliance
with the conditions (if any) to
which the warrant was subject;
and
(c) if the warrant was extended or varied,
state
(i) the number of extensions or
variations; and
(ii) the reasons for them.
(4) In the case of a retrieval warrant, the report
must
(a) state when the warrant was executed; and
(b) state the name of each person involved in
the execution of the warrant; and
(c) state whether the surveillance device was
retrieved under the warrant; and
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Part 3 Emergency Authorisations s. 29
(d) if the device was not retrieved, state the
reason why; and
(e) give details of the compliance with the
conditions (if any) to which the warrant
was subject.
(5) On receiving a report, the Supreme Court or
magistrate may order that any information
obtained from or relating to the execution of the
warrant or any record of that information be
dealt with in the way specified in the order.
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s. 30 Part 4 Recognition of Corresponding Warrants and Emergency
Authorisations
PART 4 RECOGNITION OF CORRESPONDING
WARRANTS AND EMERGENCY AUTHORISATIONS
30. Corresponding warrants
A corresponding warrant may be executed in this
jurisdiction in accordance with its terms as if it
were a surveillance device warrant or retrieval
warrant (as the case requires) issued under
Part 2.
31. Corresponding emergency authorisations
(1) A corresponding emergency authorisation
authorises the use of a surveillance device in
accordance with its terms in this jurisdiction, as
if it were an emergency authorisation given
under Part 3.
(2) Subsection (1) does not apply at any time after
the relevant court in the corresponding
jurisdiction orders, under a provision of a
corresponding law that corresponds to
section 27(4), that the use of a surveillance
device under the corresponding emergency
authorisation cease.
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Part 5 Compliance and Monitoring s. 32
PART 5 COMPLIANCE AND MONITORING
Division 1 Restrictions on use, communication and
publication of information
32. Interpretation
In this Division
"inspection entity" means a person appointed
and holding office under section 40;
"protected information" means
(a) any information obtained from
the use of a surveillance device
under a warrant, emergency
authorisation, corresponding
warrant or corresponding
emergency authorisation; or
(b) any information relating to
(i) an application for, issue
of, existence of or expiry
of a warrant, emergency
authorisation,
corresponding warrant or
corresponding emergency
authorisation; or
(ii) an application for
approval of powers
exercised under an
emergency authorisation;
or
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s. 33 Part 5 Compliance and Monitoring
(iii) an application under a
corresponding law for
approval of powers
exercised under a
corresponding emergency
authorisation.
33. Prohibition on 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 not
permitted by this section.
Penalty: Imprisonment for a term not exceeding
2 years.
(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
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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.
Penalty: Imprisonment for a term not exceeding
10 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 risk of serious
violence to a person or substantial
damage to property; or
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s. 33 Part 5 Compliance and Monitoring
(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; or
(f) the use or communication of information
otherwise authorised under this Division.
(4) Protected information may be used,
communicated or published if it is necessary to
do so for any of the following purposes:
(a) the investigation of 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
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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 of the conduct of, a public officer
within the meaning of this Act or a
public officer within the meaning of a
corresponding law;
(e) the making of a decision in relation to the
appointment, reappointment, term of
appointment, termination or retirement of
a person referred to in paragraph (d);
(f) the keeping of records and the 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 inspection entity
under section 41 or an inspection under a
provision of a corresponding law that
corresponds to section 41;
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s. 34 Part 5 Compliance and Monitoring
(h) an investigation under the Personal
Information Protection Act 2004, the
Ombudsman Act 1978 or the law of a
participating jurisdiction or of the
Commonwealth concerning the privacy
of personal information.
(5) Subsection (3)(c), (d) and (e) and
subsection (4)(a), (b) and (c) do not authorise the
use, communication or publication of protected
information in respect of an emergency
authorisation or corresponding emergency
authorisation unless the use of powers under that
emergency authorisation has been approved
under section 27 or the provisions of a
corresponding law that correspond to section 27.
(6) A reference in subsection (4) to a relevant
offence (whether of this jurisdiction or any other
jurisdiction) is a reference to any relevant
offence of the relevant jurisdiction whether or
not it is the offence of the relevant jurisdiction in
respect of which the relevant warrant or
emergency authorisation was issued or given.
34. Dealing with records obtained by use of surveillance
devices
(1) The chief officer of a law enforcement agency
(a) must ensure that every record or report
obtained by use of a surveillance device
by a law enforcement officer of the
agency under a warrant, emergency
authorisation, corresponding warrant or
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corresponding emergency authorisation
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 destroy or cause to be destroyed
any record or report referred to in
paragraph (a) if satisfied that it is not
likely to be required in connection with a
purpose referred to in section 33(4).
(2) Subsection (1) does not apply to a record or
report that is received into evidence in legal
proceedings or disciplinary proceedings.
35. Protection of surveillance device technologies and
methods
(1) In any proceedings, 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
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(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.
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36. Protected information in custody of court
A person is not entitled to search any protected
information in the custody of a court unless the
court otherwise orders in the interests of justice.
Division 2 Reporting and record-keeping
37. Keeping documents connected with warrants and
emergency authorisations
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 notice given to the chief officer
under section 15(3) of revocation of a
warrant;
(c) each emergency authorisation given to a
law enforcement officer of the agency;
(d) each application made by a law
enforcement officer of the agency for an
emergency authorisation;
(e) a copy of each application made by a law
enforcement officer of the agency for
(i) a warrant; or
(ii) extension, variation or revocation
of a warrant; or
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(iii) approval of the exercise of
powers under an emergency
authorisation;
(f) a copy of each report made to the
Supreme Court or a magistrate under
section 29;
(g) a copy of each certificate issued by a
senior officer of the agency under
section 43.
38. Other records to be kept
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 a law enforcement
officer of the agency for a warrant, or
extension, variation or revocation 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, or for approval of powers
exercised under an emergency
authorisation, was granted, refused or
withdrawn;
(c) details of each use by the agency, or by a
law enforcement officer of the agency, of
information obtained by the use of a
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surveillance device by a law enforcement
officer of the agency;
(d) 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;
(e) 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;
(f) details of the destruction of records or
reports under section 34(1)(b).
39. Register of warrants and emergency authorisations
(1) The chief officer of a law enforcement agency
must cause a register of warrants and emergency
authorisations to be kept.
(2) The register is to specify, for each warrant issued
to a law enforcement officer of the agency
(a) the date of issue of the warrant; and
(b) the name of the judge or magistrate who
issued the warrant; and
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(c) the name of the law enforcement officer
named in the warrant as the person
primarily responsible for executing it;
and
(d) the relevant offence in relation to which
the warrant was issued; and
(e) the period during which the warrant is in
force; and
(f) details of any variation or extension of
the warrant.
(3) The register is to specify, for each emergency
authorisation given to a law enforcement officer
of the agency
(a) the date on which the emergency
authorisation was given; and
(b) the name of the senior officer who gave
the emergency authorisation; and
(c) the name of the law enforcement officer
to whom the emergency authorisation
was given; and
(d) the relevant offence in relation to which
the emergency authorisation was given;
and
(e) the date on which the application for
approval of powers exercised under the
emergency authorisation was made.
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Division 3 Inspections
40. Appointment of inspection entity
The Minister may appoint a person as the
inspection entity.
41. Inspection of records by inspection entity
(1) The inspection entity must, from time to time
and at least once every 12 months, 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) For the purpose of an inspection under this
section, the inspection entity
(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) may require a member of staff of the
agency to give the inspection entity any
information that the inspection entity
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.
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(3) The chief officer must ensure that members of
staff of the agency give the inspection entity any
assistance the inspection entity reasonably
requires to enable the inspection entity to
perform functions under this section.
42. Report on inspection
(1) The inspection entity must make a written report
to the Minister and the Minister administering
the Police Service Act 2003 by not later than 31
July in each year on the results of each
inspection under section 41.
(2) The report referred to in subsection (1) is to
include a report on the comprehensiveness and
adequacy of the records of the agency and the
cooperation given by the agency in facilitating
the inspection by the inspection entity of those
records.
(3) The Minister is to cause a copy of the report to
be laid before each House of Parliament within
15 sitting-days from the day on which the report
is received by the Minister.
Division 4 General
43. Evidentiary certificates
(1) A senior officer of a law enforcement agency, or
a person assisting him or her, may issue a written
certificate signed by the officer or person setting
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out any facts he or she considers relevant with
respect to
(a) anything done by a law enforcement
officer of the agency, or by a person
assisting or providing technical expertise
to him or her, in connection with the
execution of a warrant or in accordance
with an emergency authorisation; or
(b) anything done by a law enforcement
officer of the agency in connection
with
(i) the communication by a person to
another person of; 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, corresponding
warrant or corresponding emergency
authorisation.
(2) A document purporting to be a certificate issued
under subsection (1) or under a provision of a
corresponding law that corresponds to
subsection (1) is admissible in evidence in any
proceeding.
(3) Subsection (2) does not apply to a certificate to
the extent that the certificate sets out facts with
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respect to anything done in accordance with an
emergency authorisation or corresponding
emergency authorisation unless the use of
powers under that authorisation has been
approved under section 27 or under a provision
of a corresponding law that corresponds to
section 27.
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PART 6 GENERAL
44. Annual reports
(1) The chief officer of a law enforcement agency
must submit a report to the Minister and the
Minister administering the Police Service Act
2003 that includes the following information in
respect of each financial year:
(a) the number of applications for warrants
by and the number of warrants issued to
law enforcement officers of the agency
during that year;
(b) the number of applications for
emergency authorisations by and the
number of emergency authorisations
given to law enforcement officers of the
agency during that year;
(c) the number of remote applications for
warrants by law enforcement officers of
the agency during that year;
(d) the number of applications for warrants
or emergency authorisations by law
enforcement officers of the agency that
were refused during that year, and the
reasons for refusal;
(e) the number of applications for extensions
of warrants by law enforcement officers
of the agency during that year, the
number of extensions granted or refused
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and the reasons why they were granted or
refused;
(f) 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 or emergency authorisation;
(g) the number of prosecutions that were
commenced in this jurisdiction during
that year in which information obtained
by the use of a surveillance device under
a warrant or emergency authorisation
was given in evidence and the number of
those prosecutions which resulted in a
person being found guilty;
(h) 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 subsection (1)(a)
and (b) must be presented in such a way as to
identify the number of warrants issued and
emergency 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 at any event within 3 months
after the end of the financial year.
(4) The Minister is to cause a copy of the report to
be laid before each House of Parliament within
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15 sitting-days from the day on which the report
is received by the Minister.
45. Regulations
(1) The Governor may make regulations for the
purpose of this Act.
(2) The regulations may be made so as to apply
differently according to such factors as are
specified in the regulations.
(3) The regulations may authorise any matter to be
from time to time determined, applied or
regulated by any person or body specified in the
regulations.
(4) The regulations may
(a) provide that a contravention of any of the
regulations is an offence; and
(b) in respect of such an offence, provide for
the imposition of a fine not exceeding
500 penalty units.
46. Administration of Act
Until provision is made in relation to this Act by
order under section 4 of the Administrative
Arrangements Act 1990
(a) the administration of this Act is assigned
to the Minister for Justice and Workplace
Relations; and
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(b) the department responsible to that
Minister in relation to the administration
of this Act is the Department of Justice.
47. Consequential Amendments
The legislation specified in Schedule 1 is
amended as specified in that Schedule.
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SCHEDULE 1 CONSEQUENTIAL AMENDMENTS
Section 47
Listening Devices Act 1991
1. Section 5(2) is amended by inserting after
paragraph (b) the following paragraph:
(ba) the use of a surveillance device pursuant
to an authority granted by or under the
Police Powers (Surveillance Devices)
Act 2006 or by or under a corresponding
law as defined in section 3 of that Act; or
Government Printer, Tasmania 75