Victorian Consolidated Legislation

Surveillance Devices Act 1999 - SECT 3

Definitions

3. Definitions



(1) In this Act-

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

assistance order means an order made under section 22; Australian Crime
Commission means Australian Crime Commission established by the
Australian Crime Commission Act 2002 of the Commonwealth;

authorised police officer means a person appointed by the Chief Commissioner
of Police under subsection (2);

building includes any structure; business day means a day other than a
Saturday, a Sunday or a public holiday appointed under the
Public Holidays Act 1993;

chief officer means-

   (a)  in relation to Victoria Police-the Chief Commissioner of Police;

   (b)  in relation to the Australian Crime Commission-the Chief Executive
        Officer of the Australian Crime Commission;

   (c)  in relation to the Department of Primary Industries-the Secretary to
        that department;

   (d)  in relation to the Department of Sustainability and Environment-the
        Secretary to that department;

   (e)  in relation to the Office of Police Integrity-the Director;
        Commonwealth Ombudsman means the person holding office as the
        Commonwealth Ombudsman under the Ombudsman Act 1976 of the
        Commonwealth;



computer means any electronic device for storing or processing information;
corresponding emergency authorisation means an authorisation in the nature of
an emergency authorisation given under the provisions of a corresponding law,
being an authorisation in relation to a relevant offence within the meaning of
that corresponding law; corresponding law means a law of another jurisdiction
that-

   (a)  provides for the authorisation of the use of surveillance devices; and

   (b)  is declared by the regulations to be a corresponding law;
        corresponding warrant means a warrant in the nature of a surveillance
        device warrant or retrieval warrant issued under the provisions of a
        corresponding law, being a warrant in relation to a relevant offence
        within the meaning of that corresponding law;

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

device includes instrument, apparatus and equipment; Director means the
Director, Police Integrity under section 102A(2) of the
Police Regulation Act 1958;

disciplinary proceedings means proceedings of a disciplinary nature under an
Act of Victoria, the Commonwealth or another State or a Territory of the
Commonwealth;

emergency authorisation means an emergency authorisation given under Division
3 of Part 4;





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

install includes attach; jurisdiction means a State or Territory of the
Commonwealth;

law enforcement agency means the following agencies-

   (a)  Victoria Police;

   (b)  the Australian Crime Commission;

   (c)  the Department of Primary Industries;

   (d)  the Department of Sustainability and Environment;

   (e)  the Office of Police Integrity; law enforcement officer means-

   (a)  in relation to Victoria Police-

   (i)  a member of Victoria Police; or

   (ii) a person who is seconded to Victoria Police, including (but not
        limited to) a member of the police force or police service (however
        described) of another jurisdiction;

   (b)  in relation to the Australian Crime Commission-

   (i)  a member of staff of the Australian Crime Commission; or

   (ii) a person who is seconded to the Australian Crime Commission, including
        (but not limited to) a member of the police force or police service
        (however described) of another jurisdiction;

   (c)  in relation to the Department of Primary Industries-

   (i)  an authorised officer within the meaning of the
        Conservation, Forests and Lands Act 1987 appointed by the Secretary to
        that department; or

   (ii) a person who is seconded to the Department of Primary Industries,
        including (but not limited to) a member of the police force or police
        service (however described) of another jurisdiction;

   (d)  in relation to the Department of Sustainability and Environment-

   (i)  an authorised officer within the meaning of the
        Conservation, Forests and Lands Act 1987 appointed by the Secretary to
        that department; or

   (ii) a person who is seconded to the Department of Sustainability and
        Environment, including (but not limited to) a member of the police
        force or police service (however described) of another jurisdiction;

   (e)  in relation to the Office of Police Integrity-a prescribed member of
        staff of the Office of Police Integrity; listening device means any
        device capable of being used to overhear, record, monitor or listen to
        a conversation or words spoken to or by any person in conversation,
        but does not include a hearing aid or similar device used by a person
        with impaired hearing to overcome the impairment and permit that
        person to hear only sounds ordinarily audible to the human ear;

maintain, in relation to a surveillance device, includes-

   (a)  adjust, relocate, repair or service the device; and

   (b)  replace a faulty device; member of Victoria Police, means a member of
        the force within the meaning of the Police Regulation Act 1958;



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offence means offence against the law of Victoria, the Commonwealth or another
State or a Territory of the Commonwealth; Office of Police Integrity means the
Office of Police Integrity established by section 102A(1) of the
Police Regulation Act 1958;

optical surveillance device means any device capable of being used to record
visually or observe an activity, but does not include spectacles, contact
lenses or a similar device used by a person with impaired sight to overcome
that impairment; participating jurisdiction means a jurisdiction in which a
corresponding law is in force;



party-

   (a)  to 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 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

   (d)  any place, whether built on or not- whether in or outside this
        jurisdiction; prescribed member of staff of the Office of Police
        Integrity means-

   (a)  the Director; or

   (b)  an employee in the Office of Police Integrity who holds a position, or
        is a member of a class, that is prescribed by the regulations for the
        purposes of this definition; or

   (c)  a member of Victoria Police, member of staff of the Australian Crime
        Commission or member of the police force or police service (however
        described) of another jurisdiction, who is seconded to the Office of
        Police Integrity;

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 include-

   (a)  an activity carried on outside a building; or

   (b)  an activity carried on in any circumstances in which the parties to it
        ought reasonably to expect that it may be observed by someone else;

private conversation means a conversation carried on in circumstances that may
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 which the parties to it ought reasonably to expect that it
may be overheard by someone else; protected information has the meaning given
in section 30D;

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

record includes-

   (a)  an audio, visual or audio visual record; and

   (b)  a record in digital form; or

   (c)  a documentary record prepared from a record referred to in paragraph
        (a) or (b); relevant offence means-

   (a)  an offence against the law of this jurisdiction punishable by a
        maximum term of imprisonment of 3 years or more; or

   (b)  an offence against the law of this jurisdiction that is prescribed by
        the regulations for the purposes of this definition; relevant
        proceeding means-

   (a)  the prosecution of a person for an 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 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 pecuniary penalty in connection with the
        commission or alleged commission of an offence, or a proceeding
        related or ancillary to such a proceeding;

   (e)  a proceeding for the protection of a child or intellectually impaired
        person;

   (f)  a proceeding concerning the validity of a warrant, emergency
        authorisation, corresponding warrant or corresponding emergency
        authorisation;

   (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 inquest or inquiry may have resulted
        from the commission of an offence;

   (i)  a proceeding under section 13 of the Mutual Assistance in Criminal
        Matters Act 1987 of the Commonwealth in relation to a criminal matter
        that concerns an offence against the laws of the foreign country that
        made the request resulting in the proceeding;

   (j)  a proceeding for the taking of evidence under section 43 of the
        Extradition Act 1988 of the Commonwealth;

   (k)  a proceeding for the extradition of a person from another jurisdiction
        to this jurisdiction;

   (l)  a proceeding under Division 1 of Part 4 of the
        International War Crimes Tribunals Act 1995 of the Commonwealth;

   (m)  a proceeding of the International Criminal Court;

relevant warrant, in relation to an assistance order, means the warrant in
relation to which the order is applied for; remote application for a warrant,
means an application referred to in section 16 or 20D;



report, in relation to a conversation or activity, includes a report of the
substance, meaning or purport of the conversation or activity;

retrieval warrant means a warrant issued under Subdivision 3 of Division 1 of
Part 4;



* * * * *

senior officer means-

   (a)  in relation to Victoria Police-

   (i)  the Chief Commissioner of Police; or

   (ii) a Deputy Commissioner of Police; or

   (iii) an Assistant Commissioner of Police; or

   (iv) a person appointed under subsection (3);

   (b)  in relation to the Australian Crime Commission-

   (i)  the Chief Executive Officer; or

   (ii) the Director National Operations; or

   (iii) the General Manager National Operations; or

   (iv) a member of staff of the Australian Crime Commission who is an SES
        employee or acting SES employee (within the meaning of the
        Australian Crime Commission Act 2002 of the Commonwealth) and who
        holds a position that is prescribed by the regulations for the
        purposes of this definition;

   (c)  in relation to the Department of Primary Industries-the Secretary to
        that department;

   (d)  in relation to the Department of Sustainability and Environment-the
        Secretary to that department;

   (e)  in relation to the Office of Police Integrity-

   (i)  the Director; or

   (ii) a prescribed member of staff of the Office of Police Integrity who
        holds a position, or is a member of a class, that is prescribed by the
        regulations for the purposes of this definition;

serious drug offence means an offence against any of the following sections of
the Drugs, Poisons and Controlled Substances Act 1981-

   (a)  section 71 (trafficking in a quantity of a drug or drugs of dependence
        that is not less than the large commercial quantity applicable to that
        drug or those drugs);

   (ab) section 71AA (trafficking in a quantity of a drug or drugs of
        dependence that is not less than the commercial quantity applicable to
        that drug or those drugs);

   (ac) section 71AB (trafficking in a drug of dependence to a child);

   (ad) section 71AC (trafficking in a drug of dependence);

   (b)  section 71A (possession of substance, etc., for trafficking in a drug
        of dependence);

   (c)  section 71B(1) (supply of drug of dependence to a child);

   (d)  section 72 (cultivation of a narcotic plant in a quantity of a drug of
        dependence, being a narcotic plant, that is not less than the large
        commercial quantity applicable to that narcotic plant);

   (da) section 72A (cultivation of a narcotic plant in a quantity of a drug
        of dependence, being a narcotic plant, that is not less than the
        commercial quantity applicable to that narcotic plant);

   (db) section 72B (cultivation of a narcotic plant for a purpose related to
        trafficking in that narcotic plant);

   (e)  section 73(1) (possession of a drug of dependence) other than-

   (i)  an offence committed in relation to a quantity of cannabis or
        tetrahydrocannabinol that is not more than the small quantity
        applicable to cannabis or tetrahydrocannabinol under 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 for any purpose related to
        trafficking in a drug of dependence;

   (f)  section 79(1) (conspiracy) in circumstances where the conspiracy is to
        commit an offence referred to in paragraph (a), (ab), (ac), (ad), (b),
        (c), (d), (da), (db) or (e);

   (g)  section 80(1) (aiding and abetting, etc.) in circumstances where the
        offence aided, abetted, counselled, procured, solicited or incited is
        an offence referred to in paragraph (a), (ab), (ac), (ad), (b), (c),
        (d), (da), (db) or (e)- or an offence against any of the following
        provisions of the Drugs, Poisons and Controlled Substances Act 1981 as
        in force immediately before the commencement of the Drugs, Poisons and
        Controlled Substances (Amendment) Act 2001-

   (h)  section 71(1) (trafficking in a drug of dependence);

   (i)  section 72(1) (cultivation of narcotic plants) other than an offence
        that is not committed for any purpose related to trafficking in a
        narcotic plant;

   (j)  section 79(1) (conspiracy) in circumstances where the conspiracy is to
        commit an offence referred to in paragraph (h) or (i);

   (k)  section 80(1) (aiding and abetting etc.) in circumstances where the
        offence that is aided, abetted, counselled, procured, solicited or
        incited is an offence referred to in paragraph (h) or (i); Special
        Investigations Monitor means the Special Investigations Monitor
        appointed under the
        Major Crime (Special Investigations Monitor) Act 2004;

surveillance device means-

   (a)  a data surveillance device, a listening device, an optical
        surveillance device or a tracking device; or

   (b)  a device that is a combination of any 2 or more of the devices
        referred to in paragraph (a); or

   (c)  a device of a kind prescribed by the regulations; surveillance device
        warrant means a warrant issued under Subdivision 2 of Division 1 of
        Part 4 or under section 30(3);

this jurisdiction means Victoria;





tracking device means an electronic device the primary purpose of which is to
determine the geographical location of a person or an object; unsworn
application for a warrant, means an application referred to in section 15(5)
or 20C(5);

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

vehicle includes aircraft and vessel; Victoria Police means the force within
the meaning of the Police Regulation Act 1958;

warrant (except in sections 33, 34 and 35) means surveillance device warrant
or retrieval warrant.

(2) The Chief Commissioner of Police may appoint in writing members of
Victoria Police 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.

(3) Subject to subsection (4), the Chief Commissioner of Police may appoint in
writing authorised police officers to be senior officers in relation to
Victoria Police.

(4) The Chief Commissioner of Police may appoint an authorised police officer
below the rank of commander to be a senior officer only if satisfied that the
special nature of the officer's responsibilities requires that appointment.

(5) If under the Public Administration Act 2004 the name of the Department of
Sustainability and Environment is changed, a reference in this Act to that
Department must, from the date when the name is changed, be treated as a
reference to the Department by its new name.



(6) If under the Public Administration Act 2004 the name of the Department of
Primary Industries is changed, a reference in this Act to that Department
must, from the date when the name is changed, be treated as a reference to the
Department by its new name.





(7) For the purposes of this Act, an investigation into an offence against the
law of this jurisdiction is taken to be conducted in this jurisdiction
(whether or not it is also conducted in another jurisdiction) if a law
enforcement officer participates in the investigation.

Note Subsection (7) is intended to cover the situation where an officer of
this jurisdiction is conducting or participating in an investigation wholly in
another jurisdiction for the purposes of an offence of this jurisdiction (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).

(8) In this Act, a reference to the law enforcement officer primarily
responsible for executing a warrant is a reference to the person named in the
warrant as such a person, whether or not that person is physically present for
any step in the execution of the warrant.