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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Surveillance Devices Act 1999
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purposes 1
2. Commencement 2
3. Definitions 2
4. Act binds the Crown 9
5. Act not to apply to certain Commonwealth agents 9
PART 2--REGULATION OF INSTALLATION, USE AND
MAINTENANCE OF SURVEILLANCE DEVICES 11
6. Regulation of installation, use and maintenance of listening
devices 11
7. Regulation of installation, use and maintenance of optical
surveillance devices 11
8. Regulation of installation, use and maintenance of tracking
devices 12
9. Regulation of installation, use and maintenance of data
surveillance devices by law enforcement officers 13
10. Authority for assistance and for others to use surveillance
devices 14
PART 3--RESTRICTION ON COMMUNICATION AND
PUBLICATION OF PRIVATE CONVERSATIONS AND
ACTIVITIES 15
11. Prohibition on communication or publication of private
conversations or activities 15
12. Communication and publication of information from the use
of a data surveillance device 16
PART 4--AUTHORISATIONS FOR THE USE OF
SURVEILLANCE DEVICES 18
Division 1--Warrants 18
13. Types of warrant 18
14. Which court may issue warrants? 18
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Clause Page
15. Application for warrant 18
16. Telephone application 20
17. Issue of warrant 20
18. What a warrant authorises 24
19. Revocation of warrant 26
20. Report to court 27
Division 2--Assistance Orders 28
21. Application for assistance order 28
22. Assistance order 29
23. Failure to comply with assistance order 30
24. Existence and operation of assistance order not to be disclosed 30
Division 3--Emergency Authorisations 31
25. Application for emergency authorisation 31
26. Emergency authorisations 32
27. Form and duration of emergency authorisation 33
28. Report to court 33
29. Information to be brought before court 33
30. Court may direct use of surveillance device to cease 34
PART 5--FURTHER OFFENCES AND ENFORCEMENT 35
31. Unlawful interference with surveillance devices 35
32. Offences by persons involved in management of bodies corporate
35
33. Search warrant 36
34. Announcement before entry 37
35. Copy of warrant to be given to occupier or person searched 38
PART 6--MISCELLANEOUS 39
36. Dealing with records obtained by use of surveillance devices 39
37. Annual reports 40
PART 7--REPEALS, TRANSITIONAL PROVISIONS AND
CONSEQUENTIAL AMENDMENTS 42
38. Repeal of Listening Devices Act 1969 42
39. Transitional provisions 42
40. Amendment of Evidence Act 1958 42
NOTES 43
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PARLIAMENT OF VICTORIA
A BILL
to regulate the installation, use and maintenance of surveillance
devices and restrict the publication of information gained from their
use, to repeal the Listening Devices Act 1969, to amend the Evidence
Act 1958 and for other purposes.
Surveillance Devices Act 1999
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY
1. Purposes
The purposes of this Act are--
(a) to regulate the installation, use and
5 maintenance of surveillance devices;
(b) to restrict the communication and
publication of records of private
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conversations and activities obtained through
the use of surveillance devices;
(c) to establish procedures for law enforcement
officers to obtain warrants or emergency
5 authorisations for the installation and use of
surveillance devices;
(d) to create offences relating to the improper
installation or use of surveillance devices;
(e) to impose requirements for the secure
10 storage and destruction of records obtained
by law enforcement officers through the use
of surveillance devices;
(f) to repeal the Listening Devices Act 1969.
2. Commencement
15 (1) This Part comes into operation on the day on
which this Act receives the Royal Assent.
(2) Subject to sub-section (3), the remaining
provisions of this Act come into operation on a
day or days to be proclaimed.
20 (3) If a provision referred to in sub-section (2) does
not come into operation before 1 January 2000, it
comes into operation on that day.
3. Definitions
(1) In this Act--
25 "assistance order" means an order made under
section 22;
"authorised police officer" means a person
appointed by the Chief Commissioner of
Police under sub-section (2);
30 "building" includes any structure;
"chief law enforcement officer" means--
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(a) in relation to a member of the police
force--the Chief Commissioner of
Police;
(b) in relation to a member of staff of the
5 National Crime Authority--the
chairperson of the National Crime
Authority;
(c) in relation to an authorised officer
within the meaning of the
10 Conservation, Forests and Lands Act
1987--the Secretary;
"computer" means any electronic device for
storing or processing information;
"data surveillance device" means any device
15 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
20 equipment;
"disciplinary proceedings" means proceedings
of a disciplinary nature under an Act of
Victoria, the Commonwealth or another
State or a Territory of the Commonwealth;
25 "emergency authorisation" means an
emergency authorisation given under
Division 3 of Part 4;
"enhancement equipment", in relation to a
surveillance device, means equipment
30 capable of enhancing a signal, image or other
information obtained by the use of the
surveillance device;
"install" includes attach;
"law enforcement officer" means--
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(a) a member of the police force;
(b) a member of staff of the National Crime
Authority who is a member of the
Australian Federal Police or of the
5 police force of a State or Territory of
the Commonwealth;
(c) except in Division 3 of Part 4, an
authorised officer within the meaning
of the Conservation, Forests and
10 Lands Act 1987;
"listening device" means any device capable of
being used to overhear, record, monitor or
listen to a private conversation or words
spoken to or by any person in private
15 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
20 ear;
"maintain", in relation to a surveillance device,
includes--
(a) adjust, relocate, repair or service the
device; and
25 (b) replace a faulty device;
"member of the police force" means member of
the force within the meaning of the Police
Regulation Act 1958;
"National Crime Authority" means National
30 Crime Authority established by the National
Crime Authority Act 1984 of the
Commonwealth;
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"offence" means offence against the law of
Victoria, the Commonwealth or another
State or a Territory of the Commonwealth;
"optical surveillance device" means any device
5 capable of being used to record visually or
observe a private activity, but does not
include spectacles, contact lenses or a similar
device used by a person with impaired sight
to overcome that impairment;
10 "party"--
(a) to a private activity, means a person
who takes part in the activity;
(b) to a private conversation, means a
person by or to whom words are spoken
15 in the course of the conversation;
"premises" includes--
(a) land; and
(b) a building or vehicle; and
(c) a part of a building or vehicle; and
20 (d) any place, whether built on or not;
"private activity" means an activity carried on in
circumstances that may reasonably be taken
to indicate that the parties to it desire it to be
observed only by themselves, but does not
25 include--
(a) an activity carried on outside a
building; or
(b) an activity carried on in any
circumstances in which the parties to it
30 ought reasonably to expect that it may
be observed by someone else;
"private conversation" means a conversation
carried on in circumstances that may
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reasonably be taken to indicate that the
parties to it desire it to be heard only by
themselves, but does not include a
conversation made in any circumstances in
5 which the parties to it ought reasonably to
expect that it may be overheard by someone
else;
"record" includes--
(a) an audio, visual or audio visual record;
10 and
(b) a documentary record prepared from a
record referred to in (a);
"relevant warrant", in relation to an assistance
order, means the warrant in relation to which
15 the order is applied for;
"report", in relation to a private conversation or
activity, includes a report of the substance,
meaning or purport of the conversation or
activity;
20 "Secretary" means Secretary to the Department
of Natural Resources and Environment;
"senior law enforcement officer" means--
(a) in relation to a member of the police
force--
25 (i) the Chief Commissioner of Police,
a Deputy Commissioner or an
Assistant Commissioner
appointed under the Police
Regulation Act 1958; or
30 (ii) a person appointed under sub-
section (3);
(b) in relation to a member of staff of the
National Crime Authority--a member
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of the National Crime Authority
(including the chairperson);
(c) in relation to an authorised officer
within the meaning of the
5 Conservation, Forests and Lands Act
1987--the Secretary;
"serious drug offence" means an offence against
any of the following sections of the Drugs,
Poisons and Controlled Substances Act
10 1981--
(a) section 71(1) (trafficking in a drug of
dependence);
(b) section 71A (possession of substance,
etc., for trafficking in a drug of
15 dependence);
(c) section 71B(1) (supply of drug of
dependence to a child);
(d) section 72(1) (cultivation of narcotic
plants) other than an offence that is not
20 committed for any purpose related to
trafficking in a narcotic plant;
(e) section 73(1) (possession of a drug of
dependence) other than--
(i) an offence committed in relation
25 to a quantity of cannabis or
tetrahydrocannabinol that is not
more than the small quantity
applicable to cannabis or
tetrahydrocannabinol under
30 section 70 of that Act and that is
not committed for any purpose
related to trafficking in cannabis
or tetrahydrocannabinol; or
(ii) an offence that is not committed
35 for any purpose related to
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trafficking in a drug of
dependence;
(f) section 79(1) (conspiracy) in
circumstances where the conspiracy is
5 to commit an offence referred to in
paragraph (a), (b), (c), (d) or (e);
(g) section 80(1) (aiding and abetting, etc.)
in circumstances where the offence
aided, abetted, counselled, procured,
10 solicited or incited is an offence
referred to in paragraph (a), (b), (c), (d)
or (e);
"surveillance device" means a data surveillance
device, a listening device, an optical
15 surveillance device or a tracking device;
"tracking device" means an electronic device the
primary purpose of which is to determine the
geographical location of a person or an
object;
20 "vehicle" includes aircraft and vessel;
"warrant" (except in sections 33, 34 and 35)
means warrant issued under Division 1 of
Part 4.
(2) The Chief Commissioner of Police may appoint in
25 writing members of the police force of or above
the rank of inspector to be authorised police
officers for the purpose of approving applications
for warrants and authorising the use of
surveillance devices under warrants.
30 (3) Subject to sub-section (4), the Chief
Commissioner of Police may appoint in writing
authorised police officers to be senior law
enforcement officers in relation to members of the
police force.
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(4) The Chief Commissioner of Police may appoint
an authorised police officer below the rank of
commander to be a senior law enforcement officer
only if satisfied that the special nature of the
5 officer's responsibilities requires that appointment.
(5) If under the Public Sector Management and
Employment Act 1998 the name of the
Department of Natural Resources and
Environment is changed, a reference in the
10 definition of "Secretary" in sub-section (1) to that
Department must, from the date when the name is
changed, be treated as a reference to the
Department by its new name.
4. Act binds the Crown
15 This Act binds the Crown in right of Victoria and,
so far as the legislative power of the Parliament
permits, the Crown in all its other capacities.
5. Act not to apply to certain Commonwealth agents
Nothing in this Act applies to anything done in the
20 course of duty by--
(a) a member or member of staff of the
Australian Competition and Consumer
Commission;
(b) the Director General or an officer or
25 employee of the Australian Security
Intelligence Organisation;
(c) a member of the Australian Federal Police,
other than in his or her capacity as a member
of staff of the National Crime Authority;
30 (d) an officer of customs within the meaning of
the Customs Act 1901 of the
Commonwealth;
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(e) the Minister administering the Migration Act
1958 of the Commonwealth or the Secretary
or an officer or employee in the Department
within the meaning of that Act.
5 _______________
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PART 2--REGULATION OF INSTALLATION, USE AND
MAINTENANCE OF SURVEILLANCE DEVICES
6. Regulation of installation, use and maintenance of
listening devices
5 (1) Subject to sub-section (2), a person must not
knowingly install, use or maintain a listening
device to overhear, record, monitor or listen to a
private conversation to which the person is not a
party, without the express or implied consent of
10 each party to the conversation.
Penalty: In the case of a natural person, level 7
imprisonment (2 years maximum) or a
level 7 fine (240 penalty units
maximum) or both;
15 In the case of a body corporate,
1000 penalty units for a first offence
and 2000 penalty units for a subsequent
offence.
(2) Sub-section (1) does not apply to--
20 (a) the installation, use or maintenance of a
listening device in accordance with a warrant
or an emergency authorisation; or
(b) the installation, use or maintenance of a
listening device in accordance with a law of
25 the Commonwealth.
7. Regulation of installation, use and maintenance of
optical surveillance devices
(1) Subject to sub-section (2), a person must not
knowingly install, use or maintain an optical
30 surveillance device to record visually or observe a
private activity to which the person is not a party,
without the express or implied consent of each
party to the activity.
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Penalty: In the case of a natural person, level 7
imprisonment (2 years maximum) or a
level 7 fine (240 penalty units
maximum) or both;
5 In the case of a body corporate,
1000 penalty units for a first offence
and 2000 penalty units for a subsequent
offence.
(2) Sub-section (1) does not apply to--
10 (a) the installation, use or maintenance of an
optical surveillance device in accordance
with a warrant or an emergency
authorisation; or
(b) the installation, use or maintenance of an
15 optical surveillance device in accordance
with a law of the Commonwealth; or
(c) the installation, use or maintenance of an
optical surveillance device by a law
enforcement officer in the performance of
20 his or her duty on premises if--
(i) an occupier of the premises authorises
that installation, use or maintenance;
and
(ii) the installation, use or maintenance is
25 reasonably necessary for the protection
of any person's lawful interests.
8. Regulation of installation, use and maintenance of
tracking devices
(1) Subject to sub-section (2), a person must not
30 knowingly install, use or maintain a tracking
device to determine the geographical location of a
person or an object--
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(a) in the case of a device to determine the
location of a person, without the express or
implied consent of that person; or
(b) in the case of a device to determine the
5 location of an object, without the express or
implied consent of a person in lawful
possession or having lawful control of that
object.
Penalty: In the case of a natural person, level 7
10 imprisonment (2 years maximum) or a
level 7 fine (240 penalty units
maximum) or both;
In the case of a body corporate,
1000 penalty units for a first offence
15 and 2000 penalty units for a subsequent
offence.
(2) Sub-section (1) does not apply to--
(a) the installation, use or maintenance of a
tracking device in accordance with a warrant
20 or an emergency authorisation; or
(b) the installation, use or maintenance of a
tracking device in accordance with a law of
the Commonwealth.
9. Regulation of installation, use and maintenance of
25 data surveillance devices by law enforcement officers
(1) Subject to sub-section (2), a law enforcement
officer must not knowingly install, use or maintain
a data surveillance device to record or monitor the
input of information into, or the output of
30 information from, a computer without the express
or implied consent of the person on whose behalf
that information is being input or output.
Penalty: Level 8 imprisonment (1 year
maximum) or a level 8 fine (120
35 penalty units maximum) or both.
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(2) Sub-section (1) does not apply to--
(a) the installation, use or maintenance of a data
5 surveillance device in accordance with a
warrant or an emergency authorisation; or
(b) the installation, use or maintenance of a data
surveillance device in accordance with a law
of the Commonwealth.
10 10. Authority for assistance and for others to use
surveillance devices
(1) If a law enforcement officer is authorised by or
under this Act to install, use, maintain or retrieve
a surveillance device or enhancement equipment,
15 that authorisation extends to any person who
provides assistance or technical expertise to the
officer in that installation, use, maintenance or
retrieval.
(2) If a law enforcement officer is authorised by or
20 under this Act to use a surveillance device, that
authorisation extends to any person who is
authorised by the chief law enforcement officer in
relation to that law enforcement officer to use
surveillance devices.
25 _______________
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PART 3--RESTRICTION ON COMMUNICATION AND
PUBLICATION OF PRIVATE CONVERSATIONS AND
ACTIVITIES
11. Prohibition on communication or publication of
5 private conversations or activities
(1) Subject to sub-section (2), a person must not
knowingly communicate or publish a record or
report of a private conversation or private activity
that has been made as a direct or indirect result of
10 the use of a listening device, an optical
surveillance device or a tracking device.
Penalty: In the case of a natural person, level 7
imprisonment (2 years maximum) or a
level 7 fine (240 penalty units
15 maximum) or both;
In the case of a body corporate,
1000 penalty units for a first offence
and 2000 penalty units for a subsequent
offence.
20 (2) Sub-section (1) does not apply--
(a) to a communication or publication made
with the express or implied consent of each
party to the private conversation or private
activity; or
25 (b) to a communication or publication that is no
more than is reasonably necessary--
(i) in the public interest; or
(ii) for the protection of the lawful interests
of the person making it; or
30 (c) to a communication or publication in the
course of legal proceedings or disciplinary
proceedings; or
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(d) to a communication or publication made by a
law enforcement officer--
(i) to a person authorised by the chief law
enforcement officer in relation to that
5 officer and for the purpose of
investigating or prosecuting an offence;
or
(ii) to the occupier of premises of a record
or report of a private activity that has
10 been made as a direct or indirect result
of the use on those premises of an
optical surveillance device in the
circumstances referred to in section
7(2)(c); or
15 (iii) to the sheriff or to a person employed in
the Department of Justice in the
administration of Schedule 7 to the
Magistrates' Court Act 1989
(enforcement of infringement
20 penalties); or
(iv) otherwise in the performance of his or
her duty; or
(e) to a communication to a member of the
police force by a person authorised to do so
25 by an authorised police officer; or
(f) to a communication or publication
authorised by a law of the Commonwealth
relating to the security of the
Commonwealth.
30 12. Communication and publication of information from
the use of a data surveillance device
(1) Subject to sub-section (2), a law enforcement
officer must not communicate or publish any
information regarding the input of information
35 into, or the output of information from, a
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computer that has been obtained as a direct or
indirect result of the use of a data surveillance
device.
Penalty: Level 8 imprisonment (1 year
5 maximum) or a level 8 fine (120
penalty units maximum) or both.
(2) Sub-section (1) does not apply--
(a) to a communication or publication made
with the express or implied consent of the
10 person on whose behalf the information is
input into or output from the computer; or
(b) to a communication or publication made in
the course of legal proceedings or
disciplinary proceedings; or
15 (c) to a communication or publication made by a
law enforcement officer--
(i) to a person authorised by the chief law
enforcement officer in relation to that
officer and for the purpose of
20 investigating or prosecuting an offence;
or
(ii) otherwise in the performance of his or
her duty; or
(d) to a communication or publication
25 authorised by a law of the Commonwealth
relating to the security of the
Commonwealth.
_______________
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PART 4--AUTHORISATIONS FOR THE USE OF
SURVEILLANCE DEVICES
Division 1--Warrants
13. Types of warrant
5 (1) The following types of warrant may be issued
under this Division--
(a) a listening device warrant;
(b) an optical surveillance device warrant;
(c) a data surveillance device warrant;
10 (d) a tracking device warrant;
(e) a composite warrant;
(f) a retrieval warrant.
(2) A composite warrant may be issued in respect of
more than one kind of surveillance device, or a
15 surveillance device having more than one kind of
function.
14. Which court may issue warrants?
(1) The Supreme Court may issue any warrant under
this Division.
20 (2) The Magistrates' Court may issue--
(a) a tracking device warrant; or
(b) a retrieval warrant in respect of a tracking
device if the Magistrates' Court issued the
original tracking device warrant.
25 15. Application for warrant
(1) A law enforcement officer, with the approval of a
senior law enforcement officer in relation to that
law enforcement officer or an authorised police
officer, may apply to the court for the issue of a
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warrant authorising the use of a surveillance
device if the law enforcement officer suspects or
believes--
(a) that an offence has been, is being, is about to
5 be or is likely to be committed; and
(b) that the use of a surveillance device is
necessary for the purpose of an investigation
into that offence or of enabling evidence to
be obtained of the commission of that
10 offence or the identity or location of the
offender.
(2) A law enforcement officer may apply to the court
for the issue of a retrieval warrant in respect of a
surveillance device that was lawfully installed on
15 premises and which he or she suspects or believes
is still on those premises.
(3) Subject to this section, an application must be
supported by an affidavit setting out the grounds
on which the warrant is sought.
20 (4) If--
(a) a law enforcement officer believes that the
immediate use of a surveillance device is
necessary for a purpose referred to in
sub-section (1)(b); and
25 (b) it is impractical 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.
30 (5) If sub-section (4) applies, the applicant must--
(a) provide as much information as the court
considers is reasonably practicable in the
circumstances; and
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(b) not later than the day following the making
of the application, send a duly sworn
affidavit to the judge or magistrate
constituting the court that determined the
5 application, whether or not a warrant has
been issued.
(6) An application for a warrant (other than an
application referred to in section 16) is to be heard
in closed court.
10 (7) A person must not publish a report of the whole or
any part of a proceeding on an application for a
warrant or any information derived from such a
proceeding unless the court hearing the
proceeding orders otherwise.
15 Penalty: In the case of a natural person, level 7
imprisonment (2 years maximum) or a
level 7 fine (240 penalty units
maximum) or both;
In the case of a body corporate,
20 1000 penalty units for a first offence
and 2000 penalty units for a subsequent
offence.
16. Telephone application
(1) If it is impractical for a law enforcement officer to
25 apply for a warrant in person, he or she may apply
under section 15 for a warrant by telephone,
facsimile or other form of communication.
(2) If transmission by facsimile machine is available
and an affidavit has been prepared, the officer
30 must transmit a copy of the affidavit, whether
sworn or unsworn, to the judge or magistrate
constituting the court that is to determine the
application.
17. Issue of warrant
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(1) A court may issue a warrant authorising the use of
a surveillance device if the court is satisfied--
(a) that there are reasonable grounds for the
suspicion or belief founding the application
5 for the warrant; and
(b) in the case of an application referred to in
section 15(4)--that it would have been
impractical for an affidavit to have been
sworn before the application was made; and
10 (c) in the case of an application referred to in
section 16--that it would have been
impractical for the applicant to have applied
in person for the warrant.
(2) In determining whether a warrant authorising the
15 use of a surveillance device should be issued, the
court must have regard to--
(a) the nature and gravity of the alleged offence
in respect of which the warrant is sought;
and
20 (b) the extent to which the privacy of any person
is likely to be affected; and
(c) alternative means of obtaining the evidence
or information sought to be obtained; and
(d) the evidentiary value of any evidence sought
25 to be obtained; and
(e) any previous warrant sought or issued under
this Division in connection with the same
offence.
(3) A warrant authorising the use of a surveillance
30 device must specify--
(a) the alleged offence in respect of which the
warrant is issued; and
(b) if practicable--
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(i) in the case of a listening device warrant
or optical surveillance device warrant,
the name of any person whose private
conversations or private activities may
5 be overheard, recorded, monitored,
listened to or observed;
(ii) in the case of a data surveillance device
warrant, the name of any person on
whose behalf information that may be
10 recorded or monitored is input into or
output from the computer, whether or
not that person inputs or outputs it
himself or herself;
(iii) in the case of a tracking device warrant,
15 the name of any person, or a brief
description of any object, whose
geographical location is sought to be
determined;
(iv) in the case of a composite warrant, the
20 kind of surveillance device or devices
authorised to be used; and
(c) the period during which the warrant is in
force, being a period not exceeding--
(i) in the case of an application referred to
25 in section 15(4) or 16--72 hours; or
(ii) in any other case--90 days; and
(d) the name of any law enforcement officer
who may use a surveillance device under the
warrant; and
30 (e) in the case of a listening device warrant or
optical surveillance device warrant, the
premises on which the listening device or
optical surveillance device is to be installed
(if known) or the place at which it is to be
35 used (if known); and
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(f) any conditions subject to which premises
may be entered, or a surveillance device may
be used, under the warrant; and
(g) the time within which the person to whom
5 the warrant is issued must report to the court
under section 20.
(4) In determining whether a warrant authorising the
retrieval of a surveillance device should be issued
on an application under section 15, the court must
10 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.
15 (5) A retrieval warrant must specify--
(a) the period (not exceeding 90 days) during
which the warrant is in force; and
(b) any conditions subject to which premises
may be entered under the warrant; and
20 (c) the time within which the person to whom
the warrant is issued must report to the court
under section 20.
(6) If the court issues a warrant on an application
referred to in section 16--
25 (a) the court 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 particulars to be entered in a
30 register kept by the court for the purpose;
and
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(b) the court must provide the applicant with a
copy of the warrant as soon as practicable.
(7) Nothing in this section prevents the issue of a
further warrant in respect of an offence, or a
5 surveillance device, in respect of which a warrant
has previously been issued.
18. What a warrant authorises
(1) A warrant may authorise the use of a surveillance
device on specified premises. If it does so, the
10 warrant authorises--
(a) the installation, use, maintenance and
retrieval of the device and of any
enhancement equipment in relation to the
device; and
15 (b) the breaking open of any thing for the
purpose of the installation, maintenance or
retrieval of the device or equipment; and
(c) the connection of the device or equipment to
an electricity supply system and the use of
20 electricity from that system to operate the
device or equipment; and
(d) the connection of the device or equipment to
a telephone system and the use of that
system in connection with the operation of
25 the device or equipment; and
(e) the temporary removal of a vehicle or other
object from the premises for the purpose of
the installation, maintenance or retrieval of
the device or equipment and the return of the
30 vehicle or other object to the premises; and
(f) 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
35 in paragraph (a), (b), (c), (d) or (e).
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(2) A warrant may authorise the use of a surveillance
device in or on a specified object. If it does so,
the warrant authorises--
(a) the installation, use, maintenance and
5 retrieval of the device and any enhancement
equipment in relation to the device; and
(b) the breaking open of any thing for the
purpose of the installation, maintenance or
retrieval of the device or equipment; and
10 (c) the temporary removal of the object from
any place where it is situated for the purpose
of the installation, maintenance or retrieval
of the device or equipment and the return of
the vehicle or other object to that place; and
15 (d) the entry, by force if necessary, onto any
premises where the object 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
20 referred to in paragraph (a), (b) or (c).
(3) A warrant may authorise the use of a surveillance
device in respect of the private conversations,
private activities or geographical location of a
specified person or a person whose identity is
25 unknown. If it does so, the warrant authorises--
(a) the installation, use and maintenance of the
device, and any enhancement equipment in
relation to the device, on premises or in a
place where the person is reasonably
30 believed to be or likely to be; and
(b) the retrieval of the device and equipment;
and
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(c) the entry, by force if necessary, onto the
premises referred to in paragraph (a), or
other premises adjoining or providing access
to those premises, for any of the purposes
5 referred to in paragraph (a) or (b).
(4) A retrieval warrant authorises--
(a) the retrieval of the surveillance device
specified in the warrant and any
enhancement equipment in relation to the
10 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
15 premises, for the purpose of retrieving the
device and equipment.
(5) Despite having his or her name specified in a
warrant as a person who may use a surveillance
device under the warrant, a law enforcement
20 officer may only do so if he or she--
(a) is acting in the performance of his or her
duty; and
(b) has been authorised in writing to use the
device by a senior law enforcement officer in
25 relation to the law enforcement officer or an
authorised police officer.
19. Revocation of warrant
A court that issued a warrant under this Division
may revoke the warrant at any time before the
30 expiration of the period of validity specified in it.
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20. Report to court
(1) A person to whom a warrant is issued under this
Division must, within the time specified in the
warrant, furnish a report in accordance with this
5 section to the court that issued the warrant.
Penalty: Level 8 imprisonment (1 year
maximum) or a level 8 fine (120
penalty units maximum) or both.
(2) In the case of a warrant other than a retrieval
10 warrant, the report must--
(a) state whether a surveillance device was used
under the warrant; and
(b) if so--
(i) state the period during which the device
15 was used; and
(ii) state the name, if known, of any person
whose private conversations or private
activities were overheard, recorded,
monitored, listened to or observed by
20 the use of the device; and
(iii) state the name, if known, of any person
whose geographical location was
determined by the use of a tracking
device; and
25 (iv) give details of any premises on which
the device was installed or any place at
which the device was used; and
(v) give details of any object in or on
which the device was installed or any
30 premises where the object was located
when the device was installed; and
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(vi) give details of the general use made or
to be made of any evidence or
information obtained by the use of the
device; and
5 (vii) give details of any previous use of a
surveillance device under a warrant or
emergency authorisation in connection
with an offence in respect of which the
warrant was issued.
10 (3) In the case of a retrieval warrant, the report
must--
(a) give details of any premises entered under
the warrant; and
(b) state whether the surveillance device was
15 retrieved under the warrant.
Division 2--Assistance Orders
21. Application for assistance order
(1) If a person who has applied or intends to apply for
a warrant believes that it is necessary to obtain the
20 assistance of another person for the effective
execution of the warrant, he or she may apply to
the Supreme Court for an order directing the other
person to assist in the execution of the warrant.
(2) An application for an assistance order--
25 (a) is to be made in the same manner as the
application for the warrant; and
(b) may be made at the same time as the
application for the warrant or subsequently.
(3) Notice of an application for an assistance order is
30 not required to be given to any person.
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22. Assistance order
(1) On an application under section 21, the court may
make an assistance order if satisfied that there are
reasonable grounds for doing so.
5 (2) In determining whether or not to make an
assistance order the court must take into
account--
(a) the cost or difficulty of complying with the
order; and
10 (b) the nature and gravity of the alleged offence
in respect of which the relevant warrant is or
was sought.
(3) The court may make an assistance order subject to
any conditions it thinks fit.
15 (4) An assistance order--
(a) must be endorsed on the relevant warrant;
and
(b) must specify--
(i) the person against whom it is made;
20 and
(ii) the kind of assistance that the person
must give; and
(iii) the manner in which the assistance
must be given; and
25 (iv) any conditions subject to which it is
made.
(5) An assistance order has effect only during the
period in which the relevant warrant is in force.
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23. Failure to comply with assistance order
A person who is the subject of an assistance order
must not knowingly contravene the order.
Penalty: Level 7 imprisonment (2 years
5 maximum) or a level 7 fine (240
penalty units maximum) or both.
24. Existence and operation of assistance order not to be
disclosed
(1) A person who is, or has been, the subject of an
10 assistance order must not knowingly disclose the
existence or operation of the order to any person
except--
(a) a person who is or was authorised to use a
surveillance device under the relevant
15 warrant; or
(b) another person for the purpose of ensuring
that the order is complied with; or
(c) a legal practitioner acting for the person, for
the purpose of obtaining legal advice or
20 representation in relation to the order.
Penalty: Level 7 imprisonment (2 years
maximum) or a level 7 fine (240
penalty units maximum) or both.
(2) A person to whom the existence or operation of an
25 assistance order is disclosed in accordance with
sub-section (1) must not knowingly disclose the
existence or operation of the order to any person
except--
(a) in the case of a person referred to in sub-
30 section (1)(a)--in the performance of his or
her duty; or
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(b) in the case of a person referred to in sub-
section (1)(b)--for the purpose of ensuring
that the order is complied with; or
(c) in the case of a person referred to in sub-
5 section (1)(c)--for the purpose of giving
legal advice or providing representation in
relation to the order.
Penalty: Level 7 imprisonment (2 years
maximum) or a level 7 fine (240
10 penalty units maximum) or both.
(3) Nothing in sub-section (2) prevents the disclosure
by a person referred to in sub-section (1)(a) or (b)
of the existence or operation of an assistance order
in the course of legal proceedings or disciplinary
15 proceedings.
(4) A person referred to in sub-section (1)(a) or (b)
must not be required to disclose to any court the
existence or operation of an assistance order.
(5) A reference in this section to disclosing the
20 existence or operation of an assistance order to a
person includes a reference to disclosing
information to the person from which the person
could reasonably be expected to infer the
existence or operation of the assistance order.
25 Division 3--Emergency Authorisations
25. Application for emergency authorisation
(1) A law enforcement officer1 may apply to a senior
law enforcement officer in relation to the law
enforcement officer for an emergency
30 authorisation for the use of a surveillance device if
the law enforcement officer suspects or believes--
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(a) that--
(i) an imminent threat of serious violence
to a person or substantial damage to
property exists; or
5 (ii) a serious drug offence or an offence
against a law of the Commonwealth or
of another State or a Territory that
corresponds to a serious drug offence
has been, is being, is about to be or is
10 likely to be committed; and
(b) that the use of a surveillance device is
immediately necessary for the purpose of
dealing with that threat or investigating that
offence, or of enabling evidence to be
15 obtained of the commission of that offence
or the identity or location of the offender;
and
(c) that the circumstances are so serious and the
matter is of such urgency that the use of a
20 surveillance device is warranted; and
(d) that it is not practicable in the circumstances
to apply for a warrant.
(2) An application under this section may be made
orally, in writing or by telephone, facsimile or
25 other form of communication.
26. Emergency authorisations
(1) A senior law enforcement officer may give an
emergency authorisation for the use of a
surveillance device on an application under
30 section 25 if satisfied that there are reasonable
grounds for the suspicion or belief founding the
application.
(2) An emergency authorisation may authorise the
person to whom it is given to do anything that a
35 warrant may authorise them to do.
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(3) A senior law enforcement officer may give a
composite emergency authorisation having effect
in accordance with its terms in respect of the
installation, use or maintenance of more than one
5 kind of surveillance device or a surveillance
device that has more than one kind of function.
27. Form and duration of emergency authorisation
An emergency authorisation--
(a) must be in writing; and
10 (b) remains in force for 72 hours or the shorter
period specified in it.
28. Report to court
(1) A person to whom an emergency authorisation is
given under this Division must furnish a report to
15 the Supreme Court in accordance with this section
within 72 hours after the authorisation is given.
Penalty: Level 8 imprisonment (1 year
maximum) or a level 8 fine (120
penalty units maximum) or both.
20 (2) The report must contain the particulars referred to
in section 20(2) as if a reference in that section to
the warrant were a reference to the emergency
authorisation.
29. Information to be brought before court
25 (1) On the furnishing of a report under section 28, the
Supreme Court may direct the person to whom the
emergency authorisation was given to cause any
evidence or information obtained by the use of the
surveillance device to which the authorisation
30 relates, or any record of it, to be brought before
the Supreme Court within 72 hours after the
direction is given.
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(2) The person to whom an emergency authorisation
is given under this Division must comply with a
direction under sub-section (1).
Penalty: Level 8 imprisonment (1 year
5 maximum) or a level 8 fine (120
penalty units maximum) or both.
(3) Any evidence, information or record brought
before the Supreme Court under sub-section (1) is
to be kept in the custody of the Court and the
10 Court may at any time on its own initiative order
that it be returned or destroyed.
30. Court may direct use of surveillance device to cease
On consideration of a report under section 28 or
of any evidence, information or record brought
15 before it under section 29, the Supreme Court
may, by order, direct that use of the surveillance
device to which the report, evidence, information
or record relates cease immediately.
_______________
20
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PART 5--FURTHER OFFENCES AND ENFORCEMENT
31. Unlawful interference with surveillance devices
Unless authorised by or under this Act, a person
must not knowingly interfere with, damage,
5 remove or retrieve a surveillance device that has
been lawfully installed on premises or in or on an
object by a law enforcement officer--
(a) in the circumstances referred to in section
7(2)(c); or
10 (b) in accordance with a warrant or emergency
authorisation.
Penalty: In the case of a natural person, level 7
imprisonment (2 years maximum) or a
level 7 fine (240 penalty units
15 maximum) or both;
In the case of a body corporate,
1000 penalty units for a first offence
and 2000 penalty units for a subsequent
offence.
20 32. Offences by persons involved in management of
bodies corporate
(1) If a body corporate is guilty of an offence against
this Act, any person who is concerned in, or takes
part in, the management of the body corporate is
25 also guilty of that offence and liable to the penalty
for it.
(2) A person may be proceeded against for, and found
guilty of, an offence in accordance with sub-
section (1) whether or not the body corporate has
30 been proceeded against for, or found guilty of,
that offence.
(3) It is a defence to a charge brought in accordance
with sub-section (1) for the defendant to prove
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that the offence was committed by the body
corporate without his or her consent or knowledge
and that he or she exercised due diligence to
prevent the commission of the offence.
5 33. Search warrant
(1) A member of the police force may apply to a
magistrate for the issue of a search warrant in
relation to particular premises if the member
suspects on reasonable grounds that there is, or
10 may be within the next 72 hours, on the premises
a particular thing that may be evidence of an
offence against this Act.
(2) If a magistrate is satisfied by evidence on oath,
whether oral or by affidavit, that there are
15 reasonable grounds for suspecting that there is, or
may be within the next 72 hours, on the premises
a particular thing that may be evidence of an
offence against this Act, the magistrate may issue
a search warrant authorising a member of the
20 police force named in the warrant and any
assistants the member considers necessary--
(a) to enter, by force if necessary, the premises
or part of the premises named or described in
the warrant; and
25 (b) to search the premises or any person found
on the premises for any thing named or
described in the warrant; and
(c) to seize any thing referred to in paragraph
(b).
30 (3) In addition to any other requirement, a search
warrant issued under this section must state--
(a) the offence suspected; and
(b) the premises to be searched; and
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(c) a description of the thing to be searched for;
and
(d) any conditions to which the warrant is
subject; and
5 (e) whether entry is authorised to be made at any
time or during stated hours; and
(f) a day, not later than 7 days after the issue of
the warrant, on which the warrant ceases to
have effect.
10 (4) A search warrant must be issued in accordance
with the Magistrates' Court Act 1989 and in the
form prescribed under that Act.
(5) The rules to be observed with respect to search
warrants mentioned in the Magistrates' Court
15 Act 1989 extend and apply to warrants under this
section.
34. Announcement before entry
(1) Before executing a search warrant, the member of
the police force named in the warrant or a person
20 assisting him or her must announce that he or she
is authorised by the warrant to enter the premises
and give any person at the premises an
opportunity to allow entry to the premises.
(2) The member of the police force or person
25 assisting him or her need not comply with sub-
section (1) if he or she believes on reasonable
grounds that immediate entry to the premises is
required to ensure--
(a) the safety of any person; or
30 (b) that the effective execution of the search
warrant is not frustrated.
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35. Copy of warrant to be given to occupier or person
searched
(1) If the occupier or another person who apparently
represents the occupier is present at premises
5 when a search warrant is being executed, the
member of the police force must--
(a) identify himself or herself to that person; and
(b) give that person a copy of the execution copy
of the warrant.
10 (2) If a person found on premises when a search
warrant is being executed is to be searched under
the warrant, the member of the police force
must--
(a) identify himself or herself to that person; and
15 (b) give that person a copy of the execution copy
of the warrant.
_______________
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PART 6--MISCELLANEOUS
36. Dealing with records obtained by use of surveillance
devices
(1) Each chief law enforcement officer--
5 (a) must ensure that every record or report
obtained by use of a surveillance device by a
law enforcement officer in relation to whom
he or she is chief law enforcement officer--
(i) in the circumstances referred to in
10 section 7(2)(c); or
(ii) under a warrant or emergency
authorisation--
is kept in a secure place that is not accessible
to people who are not entitled to deal with
15 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--
20 (i) the investigation of any offence; or
(ii) the making of a decision whether to
prosecute for any offence; or
(iii) the prosecution of any offence; or
(iv) the making of an application under the
25 Confiscation Act 1997; or
(v) any disciplinary proceedings.
Penalty: Level 8 fine (120 penalty units
maximum).
(2) Sub-section (1) does not apply to a record or
30 report that is received into evidence in legal
proceedings or disciplinary proceedings.
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37. Annual reports
(1) As soon as practicable after the end of each
calendar year--
(a) the Chief Commissioner of Police must
5 submit a report to the Minister that includes
the following information--
(i) the number of applications for warrants
by and the number of warrants issued to
members of the police force during that
10 year; and
(ii) the number of applications for
emergency authorisations by and the
number of emergency authorisations
given to members of the police force
15 during that year; and
(iii) the name and rank of each person
appointed as a senior law enforcement
officer under section 3(3) (whether
appointed during that year or
20 previously); and
(iv) if any person referred to in sub-
paragraph (iii) is below the rank of
commander, the reason for the
appointment of the person under
25 section 3(3); and
(v) any other information relating to the
use of surveillance devices and the
administration of this Act that the
Minister considers appropriate;
30 (b) the chairperson of the National Crime
Authority must submit a report to the
Minister that includes the following
information--
(i) the number of applications for warrants
35 by and the number of warrants issued to
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members of staff of the National Crime
Authority during that year; and
(ii) the number of applications for
emergency authorisations by and the
5 number of emergency authorisations
given to members of staff of the
National Crime Authority during that
year; and
(iii) any other information relating to the
10 use of surveillance devices and the
administration of this Act that the
Minister considers appropriate;
(c) the Secretary must submit a report to the
Minister that includes the following
15 information--
(i) the number of applications for warrants
by and the number of warrants issued to
authorised officers within the meaning
of the Conservation, Forests and
20 Lands Act 1987 during that year; and
(ii) any other information relating to the
use of surveillance devices and the
administration of this Act that the
Minister considers appropriate.
25 (2) The Minister must cause each report under sub-
section (1) to be laid before each House of the
Parliament within 12 sitting days of that House
after it is received by the Minister.
_______________
30
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PART 7--REPEALS, TRANSITIONAL PROVISIONS AND
CONSEQUENTIAL AMENDMENTS
38. Repeal of Listening Devices Act 1969
The Listening Devices Act 1969 is repealed.
5 39. Transitional provisions
(1) A warrant issued under section 4A of the
Listening Devices Act 1969 that was in force
immediately before the commencement of
section 38 of this Act continues in force after that
10 commencement in accordance with its terms, as if
it were a warrant issued under Division 1 of Part 4
of this Act.
(2) A warrant or emergency authorisation may be
issued or given under Part 4 in relation to an
15 offence that was committed before the
commencement of this section.
40. Amendment of Evidence Act 1958
In section 42T of the Evidence Act 1958, for
"Listening Devices Act 1969" substitute
20 "Surveillance Devices Act 1999".
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Notes
Act No.
NOTES
1
S. 25(1): This Division does not apply to law enforcement officers who are
authorised officers under the Conservation, Forests and Lands Act
1987 (see paragraph (c) of the definition of "law enforcement officer" in
section 3(1)).
By Authority. Government Printer for the State of Victoria.
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44
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