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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Surveillance Devices (Amendment) Act 2004
Act No.
Victorian Legislation Parliamentary Documents
TABLE OF PROVISIONS
Clause Page
1. Purpose 1
2. Commencement 2
3. Principal Act 2
4. Purposes of the Principal Act 2
5. Definitions 3
6. New section 5A inserted 13
5A. Application of Act 13
7. Regulation of installation, use and maintenance of surveillance
devices 13
8. Restriction on communication and publication of private
conversations and private activities 14
9. New Division 1 substituted in Part 4 15
Division 1--Warrants 15
Subdivision 1--Introduction 15
13. Types of warrant 15
14. Who may issue warrants? 16
Subdivision 2--Surveillance Device Warrants 16
15. Application for surveillance device warrant 16
16. Remote application 18
17. Determining the application 18
18. What must a surveillance device warrant contain? 19
19. What a surveillance device warrant authorises 21
20. Extension and variation of surveillance device warrant 25
20A. Revocation of surveillance device warrant 26
20B. Discontinuance of use of surveillance device under
warrant 27
Subdivision 3--Retrieval Warrants 28
20C. Application for retrieval warrant 28
20D. Remote application 29
20E. Determining the application 30
20F. What must a retrieval warrant contain? 30
20G. What a retrieval warrant authorises 32
20H. Revocation of retrieval warrant 33
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Clause Page
10. New Division 3 substituted in Part 4 34
Division 3--Emergency Authorisations 34
25. Application of Division 34
26. Emergency authorisation--risk of serious personal
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violence or substantial property damage 34
27. Emergency authorisation--serious drug offences 35
28. Application for approval after use of surveillance device
under emergency authorisation 37
29. Consideration of application 37
30. Judge may approve emergency use of powers 39
30A. Admissibility of evidence 40
11. New Part 4A inserted 41
PART 4A--RECOGNITION OF CORRESPONDING
WARRANTS AND AUTHORISATIONS 41
30B. Corresponding warrants 41
30C. Corresponding emergency authorisations 41
12. New heading to Part 5 41
13. New Divisions 1, 2 and 3 inserted in Part 5 42
Division 1--Restrictions on Use, Communication and
Publication of Information 42
30D. What is protected information? 42
30E. Prohibition on use, communication or publication of
protected information 43
30F. Permitted use of local protected information 45
30G. Permitted use of corresponding protected information 47
30H. Dealing with records obtained by use of surveillance
devices 50
30I. Protection of surveillance device technologies and
methods 50
30J. Protected information in the custody of a court 52
Division 2--Reporting and Record-keeping 52
30K. Report to judge or magistrate 52
30L. Annual reports 54
30M. Keeping documents connected with warrants and
emergency authorisations 57
30N. Other records to be kept 58
30O. Register of warrants and emergency authorisations 59
Division 3--Inspections 60
30P. Inspection of records by relevant Ombudsman 60
30Q. Reports on inspections 61
14. New Division heading in Part 5 62
15. Further offences and enforcement 62
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Clause Page
16. New Part 6 substituted 62
PART 6--GENERAL 62
36. Evidentiary certificates 62
37. Regulations 64
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17. Repeal of spent provisions 64
18. New section 42 inserted 64
42. Transitional provisions--Surveillance Devices
(Amendment) Act 2004 64
19. Consequential amendment of Ombudsman Act 1973 66
ENDNOTES 67
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PARLIAMENT OF VICTORIA
Initiated in Assembly 31 March 2004
As amended by Assembly 6 May 2004
Victorian Legislation Parliamentary Documents
A BILL
to amend the Surveillance Devices Act 1999 with respect to warrants
and emergency authorisations for the use of surveillance devices, to
recognise warrants and emergency authorisations issued in other
jurisdictions and for other purposes.
Surveillance Devices (Amendment) Act
2004
The Parliament of Victoria enacts as follows:
1. Purpose
The main purpose of this Act is to amend the
Surveillance Devices Act 1999--
(a) with respect to warrants and emergency
authorisations for the use of surveillance
5
devices; and
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(b) to recognise warrants and emergency
authorisations issued in other jurisdictions.
2. Commencement
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This Act comes into operation on a day or days to
be proclaimed.
5
3. Principal Act
See: In this Act, the Surveillance Devices Act 1999 is
Act No.
called the Principal Act.
21/1999
and
amending
Act Nos
61/2001,
18/2002,
35/2002,
52/2003,
56/2003 and
104/2003.
LawToday:
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gov.au
4. Purposes of the Principal Act
In section 1 of the Principal Act--
10
(a) in paragraph (a), for "and maintenance"
substitute ", maintenance and retrieval";
(b) for paragraph (b) substitute--
"(b) to restrict the use, communication and
publication of information obtained
15
through the use of surveillance devices
or otherwise connected with
surveillance device operations;";
(c) in paragraph (c), for "and use" substitute
", use, maintenance and retrieval";
20
(d) for paragraph (e) substitute--
"(e) to impose requirements for the secure
storage and destruction of records, and
the making of reports to judges,
magistrates and Parliament, in
25
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connection with surveillance device
operations;";
(e) after paragraph (f) insert--
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"(g) to recognise warrants and emergency
authorisations issued in other
5
jurisdictions for the installation and use
of surveillance devices.".
5. Definitions
(1) In section 3(1) of the Principal Act--
(a) insert the following definitions--
10
' "applicant" for a warrant, means the law
enforcement officer who applies, or on
whose behalf an application is made,
for the warrant;
"business day" means a day other than a
15
Saturday, a Sunday or a public holiday
appointed under the Public Holidays
Act 1993;
"corresponding emergency authorisation"
means an authorisation in the nature of
20
an emergency authorisation given under
the provisions of a corresponding law,
being an authorisation in relation to a
relevant offence within the meaning of
that corresponding law;
25
"corresponding law" means a law of
another jurisdiction that--
(a) provides for the authorisation of
the use of surveillance devices;
and
30
(b) is declared by the regulations to be
a corresponding law;
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"corresponding warrant" means a warrant
in the nature of a surveillance device
warrant or retrieval warrant issued
under the provisions of a corresponding
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law, being a warrant in relation to a
5
relevant offence within the meaning of
that corresponding law;
"jurisdiction" means a State or Territory of
the Commonwealth;
"law enforcement agency" means the
10
following agencies--
(a) Victoria Police;
(b) the Australian Crime
Commission;
(c) the Department of Primary
15
Industries;
(d) the Department of Sustainability
and Environment;
"participating jurisdiction" means a
jurisdiction in which a corresponding
20
law is in force;
"protected information" has the meaning
given in section 30D;
"public officer" means a person employed
by, or holding an office established by
25
or under a law of, this jurisdiction or a
person employed by a public authority
of this jurisdiction, and includes a law
enforcement officer;
"relevant offence" means--
30
(a) an offence against the law of this
jurisdiction punishable by a
maximum term of imprisonment
of 3 years or more; or
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(b) an offence against the law of this
jurisdiction that is prescribed by
the regulations for the purposes of
this definition;
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"relevant Ombudsman" means--
5
(a) the Victorian Ombudsman in
relation to Victoria Police, the
Department of Primary Industries
or the Department of
Sustainability and Environment;
10
(b) the Commonwealth Ombudsman
in relation to the Australian Crime
Commission;
"relevant proceeding" means--
(a) the prosecution of a person for an
15
offence;
(b) a bail application or a review of a
decision to grant or refuse a bail
application;
(c) a proceeding with a view to the
20
committal of a person to stand for
trial for an offence;
(d) a proceeding for the confiscation,
forfeiture or restraint of property
or for the imposition of a
25
pecuniary penalty in connection
with the commission or alleged
commission of an offence, or a
proceeding related or ancillary to
such a proceeding;
30
(e) a proceeding for the protection of
a child or intellectually impaired
person;
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(f) a proceeding concerning the
validity of a warrant, emergency
authorisation, corresponding
warrant or corresponding
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emergency authorisation;
5
(g) a disciplinary proceeding against a
public officer;
(h) a coronial inquest or inquiry if, in
the opinion of the coroner, the
event that is the subject of the
10
inquest or inquiry may have
resulted from the commission of
an offence;
(i) a proceeding under section 13 of
the Mutual Assistance in Criminal
15
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
20
request resulting in the
proceeding;
(j) a proceeding for the taking of
evidence under section 43 of the
Extradition Act 1988 of the
25
Commonwealth;
(k) a proceeding for the extradition of
a person from another jurisdiction
to this jurisdiction;
(l) a proceeding under Division 1 of
30
Part 4 of the International War
Crimes Tribunals Act 1995 of the
Commonwealth;
(m) a proceeding of the International
Criminal Court;
35
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"remote application" for a warrant, means
an application referred to in section 16
or 20D;
"retrieval warrant" means a warrant issued
Victorian Legislation Parliamentary Documents
under Subdivision 3 of Division 1 of
5
Part 4;
"surveillance device warrant" means a
warrant issued under Subdivision 2 of
Division 1 of Part 4 or under
section 30(3);
10
"this jurisdiction" means Victoria;
"unsworn application" for a warrant,
means an application referred to in
section 15(5) or 20C(5);
"use" of a surveillance device includes use
15
of the device to record a conversation
or other activity;
"Victoria Police" means the force within
the meaning of the Police Regulation
Act 1958;';
20
(b) for the definition of "chief law enforcement
officer" substitute--
' "chief officer" means--
(a) in relation to Victoria Police--the
Chief Commissioner of Police;
25
(b) in relation to the Australian Crime
Commission--the Chief
Executive Officer of the
Australian Crime Commission;
(c) in relation to the Department of
30
Primary Industries--the Secretary
to that department;
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(d) in relation to the Department of
Sustainability and Environment--
the Secretary to that department;';
(c) for the definition of "law enforcement
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officer" substitute--
5
' "law enforcement officer" means--
(a) in relation to Victoria Police--a
member of Victoria Police;
(b) in relation to the Australian Crime
Commission--a member of staff
10
of the Australian Crime
Commission;
(c) in relation to the Department of
Primary Industries--an authorised
officer within the meaning of the
15
Conservation, Forests and
Lands Act 1987 appointed by the
Secretary to that department;
(d) in relation to the Department of
Sustainability and Environment--
20
an authorised officer within the
meaning of the Conservation,
Forests and Lands Act 1987
appointed by the Secretary to that
department--
25
and includes a person who is seconded
to a law enforcement agency, including
(but not limited to) a member of the
police force or police service or a
police officer (however described) of
30
another jurisdiction;';
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(d) for the definition of "listening device"
substitute--
' "listening device" means any device
capable of being used to overhear,
Victorian Legislation Parliamentary Documents
record, monitor or listen to a
5
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
10
and permit that person to hear only
sounds ordinarily audible to the human
ear;';
(e) for the definition of "member of the police
force" substitute--
15
' "member" of Victoria Police, means a
member of the force within the
meaning of the Police Regulation Act
1958;';
(f) for the definition of "optical surveillance
20
device" substitute--
' "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
25
a similar device used by a person with
impaired sight to overcome that
impairment;';
(g) for the definition of "premises" substitute--
' "premises" includes--
30
(a) land; and
(b) a building or vehicle; and
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(c) a part of a building or vehicle; and
(d) any place, whether built on or
not--
Victorian Legislation Parliamentary Documents
whether in or outside this jurisdiction;';
(h) in the definition of "record", for
5
paragraph (b) substitute--
"(b) a record in digital form; or
(c) a documentary record prepared from a
record referred to in paragraph (a)
or (b);";
10
(i) in the definition of "report", omit "private";
(j) for the definition of "senior law enforcement
officer" substitute--
' "senior officer" means--
(a) in relation to Victoria Police--
15
(i) the Chief Commissioner of
Police; or
(ii) a Deputy Commissioner of
Police; or
(iii) an Assistant Commissioner
20
of Police; or
(iv) a person appointed under
sub-section (3);
(b) in relation to the Australian Crime
Commission--
25
(i) the Chief Executive Officer;
or
(ii) the Director National
Operations; or
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(iii) the General Manager
National Operations; or
(iv) a member of staff of the
Australian Crime
Victorian Legislation Parliamentary Documents
Commission who is an SES
5
employee or acting SES
employee (within the
meaning of the Australian
Crime Commission Act 2002
of the Commonwealth) and
10
who holds a position that is
prescribed by the regulations
for the purposes of this
definition;
(c) in relation to the Department of
15
Primary Industries--the Secretary
to that department;
(d) in relation to the Department of
Sustainability and Environment--
the Secretary to that department;';
20
(k) for the definition of "surveillance device"
substitute--
' "surveillance device" means--
(a) a data surveillance device, a
listening device, an optical
25
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
30
(c) a device of a kind prescribed by
the regulations;';
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(l) for the definition of "warrant" substitute--
' "warrant" (except in sections 33, 34 and
35) means surveillance device warrant
or retrieval warrant.'.
Victorian Legislation Parliamentary Documents
(2) In section 3 of the Principal Act--
5
(a) in sub-section (2), for "the police force"
substitute "Victoria Police";
(b) in sub-section (3), for "senior law
enforcement officers in relation to members
of the police force" substitute "senior
10
officers in relation to Victoria Police";
(c) in sub-section (4), for "senior law
enforcement officer" substitute "senior
officer";
(d) in sub-section (5), for "section 37(1)(c)"
15
substitute "this Act";
(e) in sub-section (6), for "section 37(1)(d)"
substitute "this Act".
(3) After section 3(6) of the Principal Act insert--
"(7) For the purposes of this Act, an investigation
20
into an offence against the law of this
jurisdiction is taken to be conducted in this
jurisdiction (whether or not it is also
conducted in another jurisdiction) if a law
enforcement officer participates in the
25
investigation.
Note: Sub-section (7) is intended to cover the situation
where an officer of this jurisdiction is conducting or
participating in an investigation wholly in another
30 jurisdiction for the purposes of an offence of this
jurisdiction (eg: a Victorian officer is investigating a
conspiracy to import drugs into Victoria from NSW,
and all the evidence of the offence is in NSW).".
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(4) After section 3(7) of the Principal Act insert--
"(8) In this Act, a reference to the law
enforcement officer primarily responsible for
executing a warrant is a reference to the
Victorian Legislation Parliamentary Documents
person named in the warrant as such a
5
person, whether or not that person is
physically present for any step in the
execution of the warrant.".
6. New section 5A inserted
After section 5 of the Principal Act insert--
10
"5A. Application of Act
(1) This Act is not intended to limit a discretion
that a court has--
(a) to admit or exclude evidence in any
proceeding; or
15
(b) to stay criminal proceedings in the
interests of justice.
(2) For the avoidance of doubt, it is intended that
a warrant may be issued, or an emergency
authorisation given, in this jurisdiction under
20
this Act for the installation, use, maintenance
or retrieval of a surveillance device in this
jurisdiction or a participating jurisdiction or
both.
(3) Sub-section (2) is subject to sections 19(7)
25
and 27(5).".
7. Regulation of installation, use and maintenance of
surveillance devices
In the Principal Act--
(a) in the penalty provision at the foot of each of
30
sections 6(1), 7(1) and 8(1), for
"1000 penalty units for a first offence and
2000 penalty units for a subsequent offence"
substitute "1200 penalty units";
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(b) in sections 6(2)(a), 7(2)(a), 8(2)(a) and
9(2)(a), for "warrant or an emergency
authorisation" substitute "warrant,
emergency authorisation, corresponding
Victorian Legislation Parliamentary Documents
warrant or corresponding emergency
5
authorisation";
(c) in section 6(2)(b), for "Commonwealth."
substitute "Commonwealth; or";
(d) after section 6(2)(b) insert--
"(c) the use of a listening device by a law
10
enforcement officer to monitor or
record a private conversation to which
he or she is not a party if--
(i) at least one party to the
conversation consents to the
15
monitoring or recording; and
(ii) the law enforcement officer is
acting in the course of his or her
duty; and
(iii) the law enforcement officer
20
reasonably believes that it is
necessary to monitor or record the
conversation for the protection of
any person's safety.".
(e) section 10 is repealed.
25
8. Restriction on communication and publication of
private conversations and private activities
In the Principal Act--
(a) in the penalty provision at the foot of
section 11(1), for "1000 penalty units for a
30
first offence and 2000 penalty units for a
subsequent offence" substitute
"1200 penalty units";
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(b) after section 11(2)(c) insert--
"(ca) to a communication or publication of
protected information; or";
Victorian Legislation Parliamentary Documents
(c) in section 11(2)--
(i) in paragraph (d)(i), for "chief law
5
enforcement officer in relation to that
officer" substitute "chief officer of the
law enforcement agency";
(ii) in paragraph (e), for "the police force"
substitute "Victoria Police";
10
(d) after section 12(2)(b) insert--
"(ba) to a communication or publication of
protected information; or";
(e) in section 12(2)(c)(i), for "chief law
enforcement officer in relation to that
15
officer" substitute "chief officer of the law
enforcement agency".
9. New Division 1 substituted in Part 4
For Division 1 of Part 4 of the Principal Act
substitute--
20
"Division 1--Warrants
Subdivision 1--Introduction
13. Types of warrant
(1) The following types of warrant may be
issued under this Division--
25
(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.
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14. Who may issue warrants?
(1) A Supreme Court judge may issue any
warrant under this Division.
Victorian Legislation Parliamentary Documents
(2) A magistrate may issue--
(a) a surveillance device warrant that
5
authorises the use of a tracking device
only; or
(b) a retrieval warrant in respect of a
tracking device authorised under a
warrant referred to in paragraph (a), if a
10
magistrate issued the original warrant.
Subdivision 2--Surveillance Device Warrants
15. Application for surveillance device
warrant
(1) A law enforcement officer (or another person
15
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) an offence has been, is being, is about
20
to be or is likely to be committed; and
(b) the use of a surveillance device is or
will be necessary for the purpose of an
investigation into that offence or of
enabling evidence or information to be
25
obtained of the commission of that
offence or the identity or location of the
offender.
(2) An application may be made only with the
approval of--
30
(a) a senior officer of the law enforcement
agency concerned; or
(b) an authorised police officer.
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(3) The application may be made to--
(a) a Supreme Court judge in any case; or
(b) a magistrate in the case of an
Victorian Legislation Parliamentary Documents
application for a surveillance device
warrant authorising the use of a
5
tracking device only.
(4) An application--
(a) must specify--
(i) the name of the applicant; and
(ii) the nature and duration of the
10
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
15
grounds on which the warrant is sought.
(5) If a law enforcement officer believes that--
(a) the immediate use of a surveillance
device is necessary for a purpose
referred to in sub-section (1)(b); and
20
(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.
25
(6) If sub-section (5) applies, the applicant
must--
(a) provide as much information as the
judge or magistrate considers is
reasonably practicable in the
30
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, whether or not a warrant
Victorian Legislation Parliamentary Documents
has been issued.
5
(7) An application for a warrant is not to be
heard in open court.
16. Remote application
(1) If a law enforcement officer believes that it
is impracticable for an application for a
10
surveillance device warrant to be made in
person, the application may be made under
section 15 by telephone, fax, e-mail or any
other means of communication.
(2) If transmission by fax is available and an
15
affidavit has been prepared, the person
applying must transmit a copy of the
affidavit, whether sworn or unsworn, to the
judge or magistrate who is to determine the
application.
20
17. Determining the application
(1) A Supreme Court judge or magistrate may
issue a surveillance device warrant if
satisfied--
(a) that there are reasonable grounds for
25
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
30
or sworn before the application was
made; and
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(c) in the case of a remote application--
that it would have been impracticable
for the application to have been made
in person.
Victorian Legislation Parliamentary Documents
(2) In determining whether a surveillance device
5
warrant should be issued, the judge or
magistrate must have regard to--
(a) the nature and gravity of the alleged
offence in respect of which the warrant
is sought; and
10
(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
15
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;
20
and
(e) any previous warrant sought or issued
under this Division or a corresponding
law (if known) in connection with the
same offence.
25
18. What must a surveillance device warrant
contain?
(1) A surveillance device warrant must--
(a) state that the judge or magistrate is
satisfied of the matters referred to in
30
section 17(1) and has had regard to the
matters referred to in section 17(2); and
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(b) specify--
(i) the name of the applicant; and
(ii) the alleged offence in respect of
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which the warrant is issued; and
(iii) the date the warrant is issued; and
5
(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
10
the use of the surveillance device
is authorised; and
(vi) if the warrant authorises the use of
a surveillance device in or on an
object or class of object--the
15
object or class of object in or on
which the use of the surveillance
device is authorised; and
(vii) if the warrant authorises the use of
a surveillance device in respect of
20
the conversations, activities or
geographical location of a
person--the name of the person
(if known); and
(viii) the period during which the
25
warrant is in force, being a period
not exceeding 90 days; and
(ix) the name of the law enforcement
officer primarily responsible for
executing the warrant; and
30
(x) any conditions subject to which
premises may be entered, or a
surveillance device may be used,
under the warrant; and
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(xi) the time within which a report in
respect of the warrant must be
made to the judge or magistrate
under section 30K.
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(2) In the case of a warrant referred to in sub-
5
section (1)(b)(vii), if the identity of the
person is unknown, the warrant must state
that fact.
(3) A warrant must be signed by the person
issuing it and include their name.
10
(4) If the judge or magistrate issues a warrant on
a remote application--
(a) the judge or magistrate must inform the
applicant of--
(i) the terms of the warrant; and
15
(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 judge or
magistrate for the purpose; and
20
(b) the judge or magistrate must provide
the applicant with a copy of the warrant
as soon as practicable.
19. What a surveillance device warrant
authorises
25
(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;
30
(b) the use of a surveillance device in or on
a specified object or class of object;
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(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
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unknown.
5
(2) A surveillance device warrant authorises--
(a) for a warrant of a kind referred to in
sub-section (1)(a)--
(i) the installation, use and
maintenance of a surveillance
10
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
15
specified premises adjoining or
providing access to the premises,
for any of the purposes referred to
in sub-paragraph (i) or sub-
section (3);
20
(b) for a warrant of a kind referred to in
sub-section (1)(b)--
(i) the installation, use and
maintenance of a surveillance
device of the kind specified in the
25
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
30
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
35
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purposes referred to in sub-
paragraph (i) or sub-section (3);
(c) for a warrant of a kind referred to in
sub-section (1)(c)--
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(i) the installation, use and
5
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
10
(ii) the entry, by force if necessary,
onto the premises referred to in
sub-paragraph (i), or other
premises adjoining or providing
access to those premises, for any
15
of the purposes referred to in sub-
paragraph (i) or sub-section (3).
(3) Each surveillance device warrant also
authorises--
(a) the retrieval of the surveillance device;
20
and
(b) the installation, use, maintenance and
retrieval of any enhancement
equipment in relation to the
surveillance device; and
25
(c) the temporary removal of an object
from premises for the purpose of the
installation, maintenance or retrieval of
the surveillance device or enhancement
equipment and the return of the object
30
to the premises; and
(d) the breaking open of anything for the
purpose of the installation, maintenance
or retrieval of the surveillance device or
enhancement equipment; and
35
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(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
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device or enhancement equipment; and
5
(f) the connection of the device or
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
10
of the surveillance device or
enhancement equipment; and
(g) the provision of assistance or technical
expertise to the law enforcement officer
primarily responsible for executing the
15
warrant in the installation, use,
maintenance or retrieval of the
surveillance device or enhancement
equipment.
(4) A surveillance device warrant may authorise
20
the doing of anything reasonably necessary
to conceal the fact that anything has been
done in relation to the installation, use,
maintenance or retrieval of a surveillance
device or enhancement equipment under the
25
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.
30
(6) This section applies to a warrant subject to
any conditions specified in the warrant.
(7) A surveillance device warrant cannot
authorise the installation or use of a
surveillance device outside this jurisdiction
35
if--
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(a) the application for the warrant is made
by or on behalf of an authorised officer
within the meaning of the
Conservation, Forests and Lands Act
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1987; or
5
(b) the offence in relation to which the
warrant is issued is not a relevant
offence.
(8) Nothing in this section authorises the doing
of anything for which a warrant would be
10
required under the Telecommunications
(Interception) Act 1979 of the
Commonwealth.
20. Extension and variation of surveillance
device warrant
15
(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--
20
(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
25
of the warrant.
(2) The application is to be made to--
(a) a Supreme Court judge, if the warrant
was issued by a Supreme Court judge;
or
30
(b) a magistrate, if the warrant was issued
by a magistrate.
(3) Sections 15 and 16 apply, with any necessary
changes, to an application under this section
as if it were an application for the warrant.
35
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(4) The judge or magistrate may grant an
application, subject to any conditions he or
she thinks fit, if satisfied that the matters
referred to in section 17(1) still exist, having
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regard to the matters in section 17(2).
5
(5) If the judge or magistrate grants the
application, the judge 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
10
section more than once.
20A. 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--
15
(a) a Supreme Court judge, if a Supreme
Court judge issued the warrant; or
(b) a magistrate, if a magistrate issued the
warrant.
(2) If the circumstances set out in section 20B(2)
20
apply in relation to a surveillance device
warrant, the chief officer of the law
enforcement agency must, by instrument in
writing, revoke the warrant.
(3) A judge or magistrate who revokes a warrant
25
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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20B. Discontinuance of use of surveillance
device under warrant
(1) This section applies if a surveillance device
warrant is issued to a law enforcement
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officer of a law enforcement agency.
5
(2) 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
10
the offence or the identity or location of the
offender, the chief officer must--
(a) take the steps necessary to ensure that
use of the surveillance device
authorised by the warrant is
15
discontinued as soon as practicable; and
(b) revoke the warrant under
section 20A(2).
(3) If the chief officer is notified that the warrant
has been revoked by a judge or magistrate
20
under section 20A, he or she must take the
steps necessary to ensure that use of the
surveillance device authorised by the warrant
is discontinued immediately.
(4) If the law enforcement officer to whom the
25
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
30
obtained of the commission of the 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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Subdivision 3--Retrieval Warrants
20C. Application for retrieval warrant
(1) A law enforcement officer (or another person
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on his or her behalf) may apply for the issue
of a retrieval warrant in respect of a
5
surveillance device that was lawfully
installed on premises, or in or on an object,
under a surveillance device warrant and
which the law enforcement officer on
reasonable grounds suspects or believes is
10
still on those premises or in or on that object,
or on other premises or in or on another
object.
(2) An application may be made only with the
approval of--
15
(a) a senior officer of the law enforcement
agency concerned; or
(b) an authorised police officer.
(3) The application may be made to--
(a) a Supreme Court judge in any case; or
20
(b) a magistrate in the case of an
application for a retrieval warrant
authorising the retrieval of a tracking
device only.
(4) Subject to this section, an application must
25
be supported by an affidavit setting out the
grounds on which the warrant is sought.
(5) If a law enforcement officer believes that--
(a) the immediate retrieval of a
surveillance device is necessary; and
30
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(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
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before an affidavit is prepared or sworn.
5
(6) If sub-section (5) applies, the applicant
must--
(a) provide as much information as the
judge or magistrate considers is
reasonably practicable in the
10
circumstances; and
(b) not later than the day following the
making of the application, send a duly
sworn affidavit to the judge or
magistrate who determined the
15
application, whether or not a warrant
has been issued.
(7) An application for a warrant is not to be
heard in open court.
20D. Remote application
20
(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 20C
by telephone, fax, e-mail or any other means
25
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
30
judge or magistrate who is to determine the
application.
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20E. Determining the application
(1) A Supreme Court judge or magistrate may
issue a retrieval warrant if the judge or
magistrate is satisfied--
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(a) that there are reasonable grounds for
5
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
10
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
15
in person.
(2) In determining whether a retrieval warrant
should be issued, the judge or magistrate
must have regard to--
(a) the extent to which the privacy of any
20
person is likely to be affected; and
(b) the public interest in retrieving the
device sought to be retrieved.
20F. What must a retrieval warrant contain?
(1) A retrieval warrant must--
25
(a) state that the judge or magistrate is
satisfied of the matters referred to in
section 20E(1) and has had regard to
the matters referred to in
section 20E(2); and
30
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(b) specify--
(i) the name of the applicant; and
(ii) the date the warrant is issued; and
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(iii) the kind of surveillance device
authorised to be retrieved; and
5
(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
10
force; and
(vi) the name of the law enforcement
officer primarily responsible for
executing the warrant; and
(vii) any conditions subject to which
15
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 judge or magistrate
20
under section 30K.
(2) A warrant must be signed by the person
issuing it and include their name.
(3) If the judge or magistrate issues a warrant on
a remote application--
25
(a) the judge 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--
30
and cause those details to be entered in
a register kept by the judge or
magistrate for the purpose; and
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(b) the judge or magistrate must provide
the applicant with a copy of the warrant
as soon as practicable.
20G. What a retrieval warrant authorises
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(1) A retrieval warrant (subject to any conditions
5
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
10
(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
15
purpose of retrieving the device and
equipment; and
(c) the breaking open of any thing for the
purpose of the retrieval of the device
and equipment; and
20
(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
25
equipment and the return of the object
to that place; and
(e) the provision of assistance or technical
expertise to the law enforcement officer
primarily responsible for executing the
30
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
35
and any enhancement equipment in relation
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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
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of anything reasonably necessary to conceal
5
the fact that anything has been done in
relation to the retrieval of a surveillance
device or enhancement equipment under the
warrant.
20H. Revocation of retrieval warrant
10
(1) A retrieval warrant may be revoked at any
time before the expiration of the period of
validity specified in it by--
(a) a Supreme Court judge, if a Supreme
Court judge issued the warrant; or
15
(b) a magistrate, if a magistrate issued the
warrant.
(2) A judge or magistrate who revokes a warrant
must give notice of the revocation to the
chief officer of the law enforcement agency
20
of which the law enforcement officer to
whom the warrant was issued is a member.
(3) If the chief officer of a law enforcement
agency is satisfied that the grounds for issue
of a retrieval warrant to a law enforcement
25
officer of the agency no longer exist, the
chief officer must, by instrument in writing,
revoke the warrant.
(4) If the law enforcement officer to whom a
retrieval warrant has been issued, or who is
30
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.".
35
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10. New Division 3 substituted in Part 4
For Division 3 of Part 4 of the Principal Act
substitute--
Victorian Legislation Parliamentary Documents
"Division 3--Emergency Authorisations
25. Application of Division
5
This Division does not apply to--
(a) the following law enforcement
agencies--
(i) the Department of Primary
Industries;
10
(ii) the Department of Sustainability
and Environment; or
(b) the following law enforcement
officers--authorised officers within the
meaning of the Conservation, Forests
15
and Lands Act 1987.
26. Emergency authorisation--risk of serious
personal violence or substantial property
damage
(1) A law enforcement officer of a law
20
enforcement agency may apply to a senior
officer of the agency for an emergency
authorisation for the use of a surveillance
device if the law enforcement officer on
reasonable grounds suspects or believes
25
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
30
immediately necessary for the purpose
of dealing with that threat; and
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(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
Victorian Legislation Parliamentary Documents
to apply for a surveillance device
5
warrant.
(2) An application may be made orally, in
writing or by telephone, fax, e-mail or any
other means of communication.
(3) A senior officer may give an emergency
10
authorisation for the use of a surveillance
device on an application under sub-section
(1) if satisfied that there are reasonable
grounds for the suspicion or belief founding
the application.
15
(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 them to do.
20
27. Emergency authorisation--serious drug
offences
(1) A law enforcement officer of a law
enforcement agency may apply to a senior
officer of the agency for an emergency
25
authorisation for the use of a surveillance
device if--
(a) a serious drug offence or an offence
against a law of another jurisdiction or
the Commonwealth that corresponds to
30
a serious drug offence has been, is
being, is about to be or is likely to be
committed; and
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(b) the use of a surveillance device is
immediately necessary for the purpose
of an investigation into that offence or
of enabling evidence or information to
Victorian Legislation Parliamentary Documents
be obtained of the commission of that
5
offence or the identity or location of the
offender; and
(c) the circumstances are so serious and the
matter is of such urgency that the use of
a surveillance device is warranted; and
10
(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, e-mail or any
15
other means of communication.
(3) A senior officer may give an emergency
authorisation for the use of a surveillance
device on an application under sub-section
(1) if satisfied that there are reasonable
20
grounds for the suspicion or belief founding
the application.
(4) Subject to sub-section (5), an emergency
authorisation given under this section may
authorise the law enforcement officer to
25
whom it is given to do anything that a
surveillance device warrant may authorise
them to do.
(5) An emergency authorisation given under this
section cannot authorise the installation or
30
use of a surveillance device outside this
jurisdiction.
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28. Application for approval after use of
surveillance device under emergency
authorisation
(1) Within 2 business days after giving an
Victorian Legislation Parliamentary Documents
emergency authorisation, a senior officer (or
5
another person on his or her behalf) must
apply to a Supreme Court judge for approval
of the exercise of powers under the
emergency authorisation.
(2) An application--
10
(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
15
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.
(3) The judge may refuse to consider the
20
application until the applicant gives the
judge all the information the judge requires
about the application in the way the judge
requires.
(4) An application is not to be heard in open
25
court.
29. Consideration of application
(1) Before deciding an application for approval
in respect of an emergency authorisation
given under section 26, the judge must, in
30
particular, and being mindful of the intrusive
nature of using a surveillance device,
consider the following--
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(a) the nature of the risk of serious
violence to a person or substantial
damage to property; and
(b) the extent to which issuing a
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surveillance device warrant would have
5
helped reduce or avoid the risk; and
(c) the extent to which law enforcement
officers could have used alternative
methods of investigation to help reduce
or avoid the risk; and
10
(d) how much the use of alternative
methods of investigation could have
helped reduce or avoid the risk; and
(e) how much the use of alternative
methods of investigation would have
15
prejudiced the safety of the person or
property because of delay or for another
reason; and
(f) whether or not it was practicable in the
circumstances to apply for a
20
surveillance device warrant.
(2) Before deciding an application for approval
in respect of an emergency authorisation
given under section 27, the judge must, in
particular, and being mindful of the intrusive
25
nature of using a surveillance device,
consider the following--
(a) the nature of the serious and urgent
circumstances in respect of which the
emergency authorisation was sought;
30
and
(b) the extent to which law enforcement
officers could have used alternative
methods of investigation; and
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(c) whether or not it was practicable in the
circumstances to apply for a
surveillance device warrant.
30. Judge may approve emergency use of
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powers
5
(1) After considering an application for approval
in respect of an emergency authorisation
given under section 26, the judge may
approve the application if satisfied that there
were reasonable grounds to suspect or
10
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
15
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
20
in respect of an emergency authorisation
given under section 27, the judge may
approve the application if satisfied that--
(a) the circumstances of the case were
serious and urgent; and
25
(b) using a surveillance device may have
helped to obtain evidence or
information of the commission of the
offence or the identity or location of the
offender; and
30
(c) it was not practicable in the
circumstances to apply for a
surveillance device warrant.
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(3) If the judge approves an application under
this section, the judge may issue a
surveillance device warrant for the continued
use of the surveillance device as if the
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application were an application for a
5
surveillance device warrant under
Subdivision 2 of Division 1.
(4) If the judge does not approve an application
under this section, the judge may--
(a) order that the use of the surveillance
10
device cease; and
(b) authorise, subject to any conditions the
judge thinks fit, the retrieval of the
surveillance device.
(5) In any case, the judge may order that any
15
information obtained from or relating to the
exercise of powers under the emergency
authorisation or any record of that
information be dealt with in the way
specified in the order.
20
30A. Admissibility of evidence
If the exercise of powers under an
emergency authorisation is approved under
section 30, evidence obtained because of the
exercise of those powers is not inadmissible
25
in any proceeding only because the evidence
was obtained before the approval.".
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11. New Part 4A inserted
After Part 4 of the Principal Act insert--
"PART 4A--RECOGNITION OF
Victorian Legislation Parliamentary Documents
CORRESPONDING WARRANTS AND
AUTHORISATIONS
5
30B. 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
10
under Division 1 of Part 4.
30C. Corresponding emergency authorisations
(1) A corresponding emergency authorisation
authorises the use of a surveillance device in
accordance with its terms in this jurisdiction,
15
as if it were an emergency authorisation
given under Division 3 of Part 4.
(2) Sub-section (1) does not apply at any time
after a judge orders, under a provision of a
corresponding law that corresponds to
20
section 30(4), that the use of a surveillance
device under the corresponding emergency
authorisation cease.".
12. New heading to Part 5
For the heading to Part 5 of the Principal Act
25
substitute--
"PART 5--COMPLIANCE AND
MONITORING".
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13. New Divisions 1, 2 and 3 inserted in Part 5
After the heading to Part 5 of the Principal Act
insert--
Victorian Legislation Parliamentary Documents
'Division 1--Restrictions on Use,
Communication and Publication of
5
Information
30D. What is protected information?
In this Division--
"protected information" means--
(a) any information obtained from the
10
use of a surveillance device under
a warrant, emergency
authorisation, corresponding
warrant or corresponding
emergency authorisation; or
15
(b) any information relating to--
(i) an application for, issue of,
existence of or expiry of a
warrant, emergency
authorisation, corresponding
20
warrant or corresponding
emergency authorisation; or
(ii) an application for approval
of powers exercised under an
emergency authorisation; or
25
(iii) an application under a
corresponding law for
approval of powers exercised
under a corresponding
emergency authorisation.
30
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30E. Prohibition on use, communication or
publication of protected information
(1) A person is guilty of an offence if--
Victorian Legislation Parliamentary Documents
(a) the person intentionally, knowingly or
recklessly uses, communicates or
5
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
10
to whether, the use, communication or
publication of the information is not
permitted by this Division.
Penalty: In the case of a natural person,
level 7 imprisonment (2 years
15
maximum) or a level 7 fine (240
penalty units maximum) or both;
In the case of a body corporate,
1200 penalty units.
(2) A person is guilty of an offence against this
20
sub-section if the person commits an offence
against sub-section (1) in circumstances in
which the person--
(a) intends to endanger the health or safety
of any person or prejudice the effective
25
conduct of an investigation into an
offence; or
(b) knows that, or is reckless as to whether,
the disclosure of the information--
(i) endangers or will endanger the
30
health or safety of any person; or
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(ii) prejudices or will prejudice the
effective conduct of an
investigation into an offence.
Penalty: In the case of a natural person,
Victorian Legislation Parliamentary Documents
level 5 imprisonment (10 years
5
maximum) or a level 5 fine
(1200 penalty units maximum) or
both;
In the case of a body corporate,
6000 penalty units.
10
(3) An offence against sub-section (2) is an
indictable offence.
(4) Sub-sections (1) and (2) do not apply to--
(a) the use, communication or publication
of--
15
(i) any information that has been
disclosed in proceedings in open
court; or
(ii) any information that has entered
the public domain; or
20
(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
25
violence to a person or substantial
damage to property; or
(c) the communication to the Director-
General (within the meaning of the
Australian Security Intelligence
30
Organisation Act 1979 of the
Commonwealth) of protected
information that relates or appears to
relate to activities prejudicial to
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security (within the meaning of that
Act); or
(d) the use or communication of
information referred to in paragraph (c)
Victorian Legislation Parliamentary Documents
by an officer of the Australian Security
5
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
10
appropriate authority of a foreign
country in accordance with the Mutual
Assistance in Criminal Matters Act
1987 of the Commonwealth.
(5) Sub-section (4)(c) and (d) do not authorise
15
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 authorisation has been
20
approved under section 30 or the provisions
of a corresponding law that correspond to
section 30.
30F. Permitted use of local protected
information
25
(1) Local 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 an offence;
(b) the making of a decision whether or not
30
to bring a relevant proceeding in
respect of an offence;
(c) a relevant proceeding in respect of an
offence;
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(d) an investigation of a complaint against,
or the conduct of, a public officer
within the meaning of this Act or a
public officer within the meaning of a
Victorian Legislation Parliamentary Documents
corresponding law;
5
(e) the making of a decision in relation to
the appointment, re-appointment, term
of appointment, termination or
retirement of a person referred to in
paragraph (d);
10
(f) the keeping of records and the making
of reports by a law enforcement agency
in accordance with the obligations
imposed by Division 2;
(g) an inspection by a relevant
15
Ombudsman under section 30P;
(h) an investigation under the Information
Privacy Act 2000 or the law of a
participating jurisdiction or of the
Commonwealth concerning the privacy
20
of personal information.
(2) Sub-section (1)(a), (b) and (c) do not
authorise the use, communication or
publication of protected information in
respect of an emergency authorisation unless
25
the use of powers under that authorisation
has been approved under section 30.
(3) A reference in sub-section (1) to an offence
(whether of this jurisdiction or any other
jurisdiction) is a reference to any offence,
30
whether or not the offence in respect of
which the relevant warrant or emergency
authorisation was issued or given.
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(4) In this section--
"local protected information" means--
(a) any information obtained from the
Victorian Legislation Parliamentary Documents
use of a surveillance device under
a warrant or emergency
5
authorisation; or
(b) any information relating to--
(i) an application for, issue of,
existence of or expiry of a
warrant or emergency
10
authorisation; or
(ii) an application for approval
of powers exercised under an
emergency authorisation.
30G. Permitted use of corresponding protected
15
information
(1) Corresponding protected information may be
used, communicated or published if it is
necessary to do so for any of the following
purposes--
20
(a) the investigation of a relevant offence
within the meaning of this Act or a
relevant offence within the meaning of
a corresponding law;
(b) the making of a decision whether or not
25
to bring--
(i) a relevant proceeding in respect of
a relevant offence; or
(ii) a relevant proceeding within the
meaning of a corresponding law in
30
respect of a relevant offence
within the meaning of that law;
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(c) a relevant proceeding in respect of a
relevant offence, or a relevant
proceeding within the meaning of a
corresponding law in respect of a
Victorian Legislation Parliamentary Documents
relevant offence within the meaning of
5
that law;
(d) an investigation of a complaint against,
or the conduct of, a public officer
within the meaning of this Act or a
public officer within the meaning of a
10
corresponding law;
(e) the making of a decision in relation to
the appointment, re-appointment, term
of appointment, termination or
retirement of a person referred to in
15
paragraph (d);
(f) the keeping of records and the making
of reports by a law enforcement agency
(within the meaning of a corresponding
law) in accordance with the obligations
20
imposed by provisions of the
corresponding law that correspond to
Division 2;
(g) an inspection under a provision of a
corresponding law that corresponds to
25
section 30P;
(h) an investigation under the Information
Privacy Act 2000 or the law of a
participating jurisdiction or of the
Commonwealth concerning the privacy
30
of personal information.
(2) Sub-section (1)(a), (b) and (c) do not
authorise the use, communication or
publication of protected information in
respect of a corresponding emergency
35
authorisation unless the use of powers under
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that authorisation has been approved under
the provisions of a corresponding law that
correspond to section 30.
(3) A reference in sub-section (1) to a relevant
Victorian Legislation Parliamentary Documents
offence (whether of this jurisdiction or any
5
other jurisdiction) is a reference to a relevant
offence, whether or not the offence in respect
of which the relevant corresponding warrant
or emergency authorisation was issued or
given.
10
(4) In this section--
"corresponding protected information"
means--
(a) any information obtained from the
use of a surveillance device under
15
a corresponding warrant or
corresponding emergency
authorisation; or
(b) any information relating to--
(i) an application for, issue of,
20
existence of or expiry of a
corresponding warrant or
corresponding emergency
authorisation; or
(ii) an application under a
25
corresponding law for
approval of powers exercised
under a corresponding
emergency authorisation.
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30H. Dealing with records obtained by use of
surveillance devices
(1) The chief officer of a law enforcement
agency--
Victorian Legislation Parliamentary Documents
(a) must ensure that every record or report
5
obtained by use of a surveillance device
by a law enforcement officer of the
agency under a warrant, emergency
authorisation, corresponding warrant or
corresponding emergency authorisation
10
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
15
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 30E(4),
30F(1) or 30G(1).
20
(2) Sub-section (1) does not apply to a record or
report that is received into evidence in legal
proceedings or disciplinary proceedings.
30I. Protection of surveillance device
technologies and methods
25
(1) In any proceeding, 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
30
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
35
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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 sub-section (2), the person
Victorian Legislation Parliamentary Documents
conducting or presiding over the proceeding
5
must take into account whether disclosure of
the information--
(a) is necessary for the fair trial of the
defendant; or
(b) is in the public interest.
10
(4) Sub-section (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.
15
(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
20
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
25
details are not revealed.
(6) Sub-section (5) does not apply to the extent
that the person conducting or presiding over
the proceeding considers that the interests of
justice require otherwise.
30
(7) In this section--
"proceeding" includes a proceeding before
a court, tribunal, Royal Commission or
a board to which Division 5 of Part I of
the Evidence Act 1958 applies.
35
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30J. Protected information in the custody of a
court
A person is not entitled to search any
protected information in the custody of a
Victorian Legislation Parliamentary Documents
court unless the court otherwise orders in the
5
interests of justice.
Division 2--Reporting and Record-keeping
30K. Report to judge or magistrate
(1) A law enforcement officer to whom a
warrant is issued, or who is primarily
10
responsible for executing a warrant issued,
under this Act must, within the time
specified in the warrant, make a report in
accordance with this section to the judge or
magistrate who issued the warrant.
15
(2) In the case of a surveillance device warrant,
the report must--
(a) state whether the warrant was executed;
and
(b) if so--
20
(i) state the name of each person
involved in the execution of the
warrant; and
(ii) state the kind of surveillance
device used; and
25
(iii) state the period during which the
device was used; and
(iv) state the name, if known, of any
person whose conversations or
activities were overheard,
30
recorded, monitored, listened to or
observed by the use of the device;
and
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(v) state the name, if known, of any
person whose geographical
location was determined by the
use of a tracking device; and
Victorian Legislation Parliamentary Documents
(vi) give details of any premises on
5
which the device was installed or
any place at which the device was
used; and
(vii) give details of any object in or on
which the device was installed or
10
any premises where the object was
located when the device was
installed; and
(viii) give details of the benefit to the
investigation of the use of the
15
device and of the general use
made or to be made of any
evidence or information obtained
by the use of the device; and
(ix) give details of the compliance
20
with the conditions (if any) to
which the warrant was subject;
and
(c) if the warrant was extended or varied,
state--
25
(i) the number of extensions or
variations; and
(ii) the reasons for them; and
(d) state whether the chief officer has
revoked the warrant under
30
section 20A(2).
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(3) In the case of a retrieval warrant, the report
must--
(a) give details of any premises entered,
anything opened and any object
Victorian Legislation Parliamentary Documents
removed and replaced under the
5
warrant; and
(b) state whether the surveillance device
was retrieved under the warrant; and
(c) if the device was not retrieved, state the
reason why; and
10
(d) give details of the compliance with the
conditions (if any) to which the warrant
was subject; and
(e) state whether the chief officer has
revoked the warrant under
15
section 20H(3).
(4) On receiving a report, the judge or
magistrate may order that any information
obtained from or relating to the execution of
the warrant or any record of that information
20
be dealt with in the way specified in the
order.
30L. Annual reports
(1) The chief officer of a law enforcement
agency must submit a report to the Minister
25
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
30
during that year; and
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(b) the number of applications for
emergency authorisations by and the
number of emergency authorisations
given to law enforcement officers of the
Victorian Legislation Parliamentary Documents
agency during that year; and
5
(c) the number of remote applications for
warrants by law enforcement officers of
the agency during that year; and
(d) the number of applications for warrants
or emergency authorisations by law
10
enforcement officers of the agency that
were refused during that year, and the
reasons for refusal; and
(e) the number of applications for
extensions of warrants by law
15
enforcement officers of the agency
during that year, the number of
extensions granted or refused and the
reasons why they were granted or
refused; and
20
(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
25
warrant or emergency authorisation;
and
(g) the number of prosecutions that were
commenced in this jurisdiction during
that year in which information obtained
30
by the use of a surveillance device
under a warrant or emergency
authorisation was given in evidence and
the number of those prosecutions in
which a person was found guilty; and
35
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(h) in the case of Victoria Police--
(i) the name and rank of each person
appointed as a senior officer under
section 3(3) (whether appointed
Victorian Legislation Parliamentary Documents
during that year or previously);
5
and
(ii) if any person referred to in sub-
paragraph (i) is below the rank of
commander, the reason for the
appointment of the person under
10
section 3(3); and
(i) any other information relating to the
use of surveillance devices and the
administration of this Act that the
Minister considers appropriate.
15
(2) The information referred to in sub-section
(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
20
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.
25
(4) The Minister must cause a copy of each
report under this section to be laid before
each House of Parliament within 15 sitting
days after the day the Minister receives the
report.
30
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30M. Keeping documents connected with
warrants and emergency authorisations
The chief officer of a law enforcement
agency must cause the following to be
Victorian Legislation Parliamentary Documents
kept--
5
(a) each warrant issued to a law
enforcement officer of the agency; and
(b) each notice given to the chief officer
under section 20A(3) of revocation of a
warrant; and
10
(c) each emergency authorisation given to
a law enforcement officer of the
agency; and
(d) each application made by a law
enforcement officer of the agency for
15
an emergency authorisation; and
(e) a copy of each application made by a
law enforcement officer of the agency
for--
(i) a warrant;
20
(ii) extension, variation or revocation
of a warrant;
(iii) approval of the exercise of powers
under an emergency authorisation;
and
25
(f) a copy of each report made to a judge
or magistrate under section 30K; and
(g) a copy of each certificate issued by a
senior officer of the agency under
section 36.
30
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30N. Other records to be kept
The chief officer of a law enforcement
agency must cause the following to be
kept--
Victorian Legislation Parliamentary Documents
(a) a statement as to whether each
5
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; and
10
(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
15
authorisation, was granted, refused or
withdrawn; and
(c) details of each use by the agency, or by
a law enforcement officer of the
agency, of information obtained by the
20
use of a surveillance device by a law
enforcement officer of the agency; and
(d) details of each communication by a law
enforcement officer of the agency to a
person other than a law enforcement
25
officer of the agency of information
obtained by the use of a surveillance
device by a law enforcement officer of
the agency; and
(e) details of each occasion when, to the
30
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
35
proceeding; and
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(f) details of the destruction of records or
reports under section 30H(1)(b).
30O. Register of warrants and emergency
authorisations
Victorian Legislation Parliamentary Documents
(1) The chief officer of a law enforcement
5
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--
10
(a) the date of issue of the warrant; and
(b) the name of the judge or magistrate
who issued the warrant; and
(c) the name of the law enforcement officer
named in the warrant as the person
15
primarily responsible for executing it;
and
(d) the offence in relation to which the
warrant was issued; and
(e) the period during which the warrant is
20
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
25
enforcement officer of the agency--
(a) the date the emergency authorisation
was given; and
(b) the name of the senior officer who gave
the emergency authorisation; and
30
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(c) the name of the law enforcement officer
to whom the emergency authorisation
was given; and
(d) the offence in relation to which the
Victorian Legislation Parliamentary Documents
emergency authorisation was given;
5
and
(e) the date on which the application for
approval of powers exercised under the
emergency authorisation was made.
Division 3--Inspections
10
30P. Inspection of records by relevant
Ombudsman
(1) The relevant Ombudsman in relation to a law
enforcement agency must, from time to time,
inspect the records of the agency to
15
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 relevant Ombudsman--
20
(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
25
all reasonable times to all records of the
agency that are relevant to the
inspection; and
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(c) may require a member of staff of the
agency to give the relevant
Ombudsman any information that the
relevant Ombudsman considers
Victorian Legislation Parliamentary Documents
necessary, being information that is in
5
the member's possession, or to which
the member has access, and that is
relevant to the inspection.
(3) The chief officer must ensure that members
of staff of the agency give the relevant
10
Ombudsman any assistance the relevant
Ombudsman reasonably requires to enable
the relevant Ombudsman to perform
functions under this section.
30Q. Reports on inspections
15
(1) A relevant Ombudsman must make a report
to Parliament at 6-monthly intervals on the
results of each inspection under section 30P.
(2) A relevant Ombudsman must--
(a) cause the report to be transmitted to
20
each House of Parliament as soon as
practicable after 1 January and 1 July
each year; and
(b) give a copy of the report to the
Attorney-General at the same time as it
25
is transmitted to each House.
(3) The clerk of each House of Parliament must
cause the report to be laid before the House
on the day on which it is received or on the
next sitting day.'.
30
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14. New Division heading in Part 5
Before section 31 of the Principal Act insert--
"Division 4--Further Offences and
Victorian Legislation Parliamentary Documents
Enforcement".
15. Further offences and enforcement
5
In the Principal Act--
(a) for section 31(b) substitute--
"(b) in accordance with a warrant,
emergency authorisation,
corresponding warrant or
10
corresponding emergency
authorisation.";
(b) in the penalty provision at the foot of
section 31, for "1000 penalty units for a first
offence and 2000 penalty units for a
15
subsequent offence" substitute
"1200 penalty units";
(c) in sections 33, 34 and 35, for "the police
force" (wherever occurring) substitute
"Victoria Police".
20
16. New Part 6 substituted
For Part 6 of the Principal Act substitute--
"PART 6--GENERAL
36. Evidentiary certificates
(1) A senior officer of a law enforcement
25
agency, or a person assisting him or her, may
issue a written certificate signed by the
officer or person setting out any facts he or
she considers relevant with respect to--
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Act No.
(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
Victorian Legislation Parliamentary Documents
with the execution of a warrant or in
5
accordance with an emergency
authorisation; or
(b) anything done by a law enforcement
officer of the agency in connection
with--
10
(i) the communication by a person to
another person; or
(ii) the making use of; or
(iii) the making of a record of; or
(iv) the custody of a record of--
15
information obtained by the use of a
surveillance device under a warrant,
emergency authorisation,
corresponding warrant or
corresponding emergency
20
authorisation.
(2) A document purporting to be a certificate
issued under sub-section (1) or under a
provision of a corresponding law that
corresponds to sub-section (1) is admissible
25
in evidence in any proceeding.
(3) Sub-section (2) does not apply to a certificate
to the extent that the certificate sets out facts
with respect to anything done in accordance
with an emergency authorisation or
30
corresponding emergency authorisation
unless the use of powers under that
authorisation has been approved under
section 30 or under a provision of a
corresponding law that corresponds to
35
section 30.
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s. 17
Act No.
37. Regulations
(1) The Governor in Council may make
regulations for or with respect to prescribing
any matter or thing required or permitted by
Victorian Legislation Parliamentary Documents
this Act to be prescribed or necessary to be
5
prescribed to give effect to this Act.
(2) The regulations--
(a) may be of general or limited
application;
(b) may differ according to differences in
10
time, place or circumstances.".
17. Repeal of spent provisions
Sections 38, 39 and 40 of the Principal Act are
repealed.
18. New section 42 inserted
15
After section 41 of the Principal Act insert--
'42. Transitional provisions--Surveillance
Devices (Amendment) Act 2004
(1) An existing surveillance device warrant that
was in force immediately before the
20
commencement day continues in force on
and after that day in accordance with its
terms as if it were a surveillance device
warrant issued under section 17 as in force
on and after the commencement day.
25
(2) An existing retrieval warrant that was in
force immediately before the commencement
day continues in force on and after that day
in accordance with its terms as if it were a
retrieval warrant issued under section 20E as
30
in force on and after the commencement day.
(3) An existing emergency authorisation
(violence or damage) that was in force
immediately before the commencement day
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s. 18
Act No.
continues in force on and after that day in
accordance with its terms as if it were an
emergency authorisation given under
section 26 as in force on and after the
Victorian Legislation Parliamentary Documents
commencement day.
5
(4) An existing emergency authorisation (drugs)
that was in force immediately before the
commencement day continues in force on
and after that day in accordance with its
terms as if it were an emergency
10
authorisation given under section 27 as in
force on and after the commencement day.
(5) Sections 28 to 30A (as substituted by the
Surveillance Devices (Amendment) Act
2004) apply to an existing emergency
15
authorisation unless a report has been
furnished to the court before the
commencement day under section 28 (as in
force immediately before that day) in respect
of the authorisation.
20
(6) A warrant or emergency authorisation may
be issued or given under this Act as in force
on and after the commencement day in
relation to an offence that was committed
before the commencement day.
25
(7) In this section--
"commencement day" means the day on
which section 18 of the Surveillance
Devices (Amendment) Act 2004
comes into operation;
30
"existing emergency authorisation" means
an existing emergency authorisation
(drugs) or an existing emergency
authorisation (violence or damage);
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"existing emergency authorisation
(drugs)" means an emergency
authorisation given under section 26 as
in force immediately before the
Victorian Legislation Parliamentary Documents
commencement day on a ground
5
referred to in section 25(1)(a)(ii) as in
force at that time;
"existing emergency authorisation
(violence or damage)" means an
emergency authorisation given under
10
section 26 as in force immediately
before the commencement day on a
ground referred to in section 25(1)(a)(i)
as in force at that time;
"existing retrieval warrant" means a
15
retrieval warrant issued under
section 17 as in force immediately
before the commencement day;
"existing surveillance device warrant"
means a warrant (other than a retrieval
20
warrant) issued under section 17 as in
force immediately before the
commencement day.'.
See: 19. Consequential amendment of Ombudsman Act 1973
Act No.
8414.
In section 13(3A) of the Ombudsman Act
25 Reprint No. 6
1973--
as at
1 January
(a) in paragraph (c)(ii), for "1995." substitute
2002
and
"1995; or";
amending
Act Nos
(b) after paragraph (c) insert--
2/2001,
23/2003 and
"(d) for the purpose of carrying out a
30 103/2003.
LawToday:
function under Division 3 of Part 5 of
www.dms.
the Surveillance Devices Act 1999.".
dpc.vic.
gov.au
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Endnotes
Act No.
ENDNOTES
Victorian Legislation Parliamentary Documents
By Authority. Government Printer for the State of Victoria.
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