SURVEILLANCE DEVICES ACT 1998 - SECT 3

SURVEILLANCE DEVICES ACT 1998 - SECT 3

3 .         Interpretation

        (1)         In this Act, unless the contrary intention appears —

        Attorney General means the Attorney General of the State or, where there is a vacancy in the office of Attorney General, the Minister for Justice of the State;

        Australian Crime Commission means the Australian Crime Commission established by the Australian Crime Commission Act 2002 of the Commonwealth;

        authorised person means —

            (a)         in the case of the police force of the State —

                  (i)         the Commissioner of Police;

                  (ii)         a Deputy Commissioner of Police; and

                  (iii)         an Assistant Commissioner of Police;

            (aa)         in the case of the Corruption and Crime Commission, an officer of the Corruption and Crime Commission authorised for that purpose by the Commission;

            (b)         in the case of a designated Commission, a person authorised for the purpose by the designated Commission; and

            (c)         in the case of the Australian Crime Commission, a person authorised for the purpose by the Chair of the Board of the Australian Crime Commission;

        building includes any structure;

        Chief Magistrate means the Chief Magistrate of the Magistrates Court;

        composite emergency authorisation means an emergency authorisation issued under Division 2 of Part 4 in respect of more than one kind of surveillance device or a surveillance device that has more than one kind of function;

        composite warrant means a warrant issued under section 13(10) or 22(4) in respect of more than one kind of surveillance device or a surveillance device that has more than one kind of function;

        connected device means an instrument, apparatus, or equipment that is not a surveillance device but is ancillary to the use or installation of a surveillance device and is capable of being used directly or indirectly in connection with, as the result of, or for the purposes of the commission of an offence under this Act;

        Corruption and Crime Commission has the meaning given to “Commission” in section 3 of the Corruption, Crime and Misconduct Act 2003 ;

        designated Commission means a Royal Commission under the Royal Commissions Act 1968 to which, by the terms of appointment or in an instrument made by the Governor, this Act is expressly declared to apply;

        emergency authorisation means an authorisation issued by an authorised person to a member of the police force of the State, an officer of the Corruption and Crime Commission, an officer of a designated Commission or a member of the staff of the Australian Crime Commission under section 21;

        external indictable drug offence means an offence under the law of a State (other than Western Australia) or a Territory that corresponds to an offence of a kind referred to in the definition of “indictable drug offence”;

        indictable drug offence means an offence under section 6(1), 7(1), 33(1)(a), 33(2)(a) or 33(3)(a) of the Misuse of Drugs Act 1981 ;

        law enforcement officer means —

            (a)         a member of the police force of the State or of another State or a Territory;

            (aa)         an officer of the Corruption and Crime Commission;

            (b)         an officer of a designated Commission;

            (c)         a member of the staff of the Australian Crime Commission who is a member of the Australian Federal Police or of the police force of a State or Territory;

            (d)         a person who is a member of such other class of persons as is prescribed, being persons who are officers or employees of a department, authority or agency of the State or of another State or a Territory;

        listen to includes hear;

        listening device means any instrument, apparatus, equipment, or other device capable of being used to record, monitor or listen to a private conversation or words spoken to or by any person in private 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;

        listening device warrant means a warrant issued under Part 4 by a judge to authorise the installation, use, maintenance, and retrieval of a listening device;

        maintain , in relation to a surveillance device, includes adjust, repair, reposition, and service;

        member of the staff of the Australian Crime Commission has the meaning given to the term “member of the staff of the ACC” in section 4(1) of the Australian Crime Commission Act 2002 of the Commonwealth as extended by section 3(3) of the Australian Crime Commission (Western Australia) Act 2004 ;

        officer of a designated Commission means —

            (a)         a person appointed by the Attorney General to assist a designated Commission; or

            (b)         any other person appointed, employed, seconded or engaged to assist a designated Commission;

        officer of the Corruption and Crime Commission has the meaning given to “officer of the Commission” in section 3 of the Corruption, Crime and Misconduct Act 2003 ;

        optical surveillance device means any instrument, apparatus, equipment, or other device capable of being used to record visually or observe a private activity, but does not include spectacles, contact lenses or a similar device used by a person with impaired sight to overcome that impairment;

        optical surveillance device warrant means a warrant issued under Part 4 by a judge to authorise the installation, use, maintenance, and retrieval of an optical surveillance device;

        party means —

            (a)         in relation to a private conversation —

                  (i)         a person by or to whom words are spoken in the course of the conversation; or

                  (ii)         a person who, with the express or implied consent of any of the persons by or to whom words are spoken in the course of the conversation, records, monitors or listens to those words;

                and

            (b)         in relation to a private activity —

                  (i)         a person who takes part in the activity; or

                  (ii)         a person who, with the express or implied consent of any of the persons taking part in the activity, observes or records the activity;

        premises includes all or part of any land, building, aircraft or vehicle, and any place whether built on or not;

        principal party means —

            (a)         in relation to a private conversation, a person by or to whom words are spoken in the course of the conversation; and

            (b)         in relation to a private activity, a person who takes part in the activity;

        private activity means any activity carried on in circumstances that may reasonably be taken to indicate that any of the parties to the activity desires it to be observed only by themselves, but does not include an activity carried on in any circumstances in which the parties to the activity ought reasonably to expect that the activity may be observed;

        private conversation means any conversation carried on in circumstances that may reasonably be taken to indicate that any of the parties to the conversation desires it to be listened to only by themselves, but does not include a conversation carried on in any circumstances in which the parties to the conversation ought reasonably to expect that the conversation may be overheard;

        record , in relation to a private conversation, includes a statement prepared from such a record and to record includes visual and sound recording;

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

        surveillance device means a listening device, an optical surveillance device or a tracking device;

        surveillance device (retrieval) warrant means a warrant issued under section 22 by a judge to authorise the retrieval of a surveillance device that has been attached or installed in accordance with an emergency authorisation issued under section 21;

        tracking device means any instrument, apparatus, equipment, or other device capable of being used to determine the geographical location of a person or object;

        tracking device (maintenance/retrieval) warrant means a warrant issued under section 14 to authorise the maintenance or retrieval or the maintenance and retrieval of a tracking device or devices that have been attached or installed on a vehicle situated in a public place by a person referred to in section 7(2)(a);

        tracking device warrant means a warrant issued under Part 4 to authorise the attachment, installation, use, maintenance and retrieval of a tracking device;

        vehicle includes a vessel;

        warrant means a warrant issued under Part 4.

        (2)         An instrument, apparatus, equipment, or other device is to be regarded for the purposes of this Act as a listening device, an optical surveillance device, a tracking device, or more than one of those devices, if it is capable of performing the function of such a device or devices as described in the definitions in subsection (1).

        (3)         For the purposes of a designated Commission this Act operates as if —

            (a)         a reference in section 5(3)(b) or 6(3)(b)(ii) to a suspected criminal offence included a reference to suspected misconduct;

            (b)         a reference in section 13(1)(a) or (b), (2)(a) or (8)(a) or 17(1)(a) or (b) to an offence included a reference to an act of misconduct; and

            (c)         a reference in section 13(1)(b), (2)(a) or (8)(a) or 17(1)(b) to a suspected offence included a reference to suspected misconduct.

        (4)         In subsection (3) —

        misconduct has the meaning given to that term by section 4 of the Corruption, Crime and Misconduct Act 2003 .

        [Section 3 amended: No. 78 of 2003 s. 74; No. 59 of 2004 s. 141; No. 62 of 2004 s. 9(3); No. 74 of 2004 s. 72(2); No. 30 of 2006 s. 16; No. 35 of 2014 s. 39.]