SURVEILLANCE DEVICES (AMENDMENT) ACT 2004 (NO 26 OF 2004) - SECT 9 New Division 1 substituted in Part 4
SURVEILLANCE DEVICES (AMENDMENT) ACT 2004 (NO 26 OF 2004) - SECT 9
New Division 1 substituted in Part 4For Division 1 of Part 4 of the Principal Act substitute —
"Division 1—Warrants
Subdivision 1—Introduction
13. Types of warrant
(1) The following types of warrant may be issued under this Division—
(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.
14. Who may issue warrants?
(1) A Supreme Court judge may issue any warrant under this Division.
(2) A magistrate may issue—
(a) a surveillance device warrant that 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 magistrate issued the original warrant.
Subdivision 2—Surveillance Device Warrants
15. Application for surveillance device warrant
(1) A law enforcement officer (or another person on his or her behalf) may apply for the issue of a surveillance device warrant if the law enforcement officer on reasonable grounds suspects or believes that—
(a) an offence has been, is being, is about 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 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—
(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
(b) a magistrate in the case of an application for a surveillance device warrant authorising the use of a tracking device only.
(4) An application—
(a) must specify—
(i) the name of the applicant; and
(ii) the nature and duration of the warrant sought, including the kind of surveillance device sought to be authorised; and
(b) subject to this section, must be supported by an affidavit setting out the grounds on which the warrant is sought.
(5) If a law enforcement officer believes
that—
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(a) the immediate use of a surveillance device is necessary for a purpose referred to in sub-section (1)(b); and
(b) it is impracticable for an affidavit to be prepared or sworn before an application for a warrant is made—
an application for a warrant may be made before an affidavit is prepared or sworn.
(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 circumstances; and
(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 has been issued.
(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 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 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.
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 the suspicion or belief founding the application for the warrant; and
(b) in the case of an unsworn application—that it would have been impracticable for an affidavit to have been prepared or sworn before the application was made; and
(c) in the case of a remote application—that it would have been impracticable for the application to have been made in person.
(2) In determining whether a surveillance device 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
(b) the extent to which the privacy of any person is likely to be affected; and
(c) the existence of any alternative means of obtaining the evidence or information sought to be obtained and the extent to which those means may assist or prejudice the investigation; and
(d) the evidentiary or intelligence value of any information sought to be obtained; and
(e) any previous warrant sought or issued under this Division or a corresponding law (if known) in connection with the same offence.
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 section 17(1) and has had regard to the matters referred to in section 17(2); and
(b) specify—
(i) the name of the applicant; and
(ii) the alleged offence in respect of which the warrant is issued; and
(iii) the date the warrant is issued; and
(iv) the kind of surveillance device authorised to be used; and
(v) if the warrant authorises the use of a surveillance device on premises—the premises on which the use of the surveillance device is authorised; and
(vi) if the warrant authorises the use of a surveillance device in or on an object or class of object—the 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 the conversations, activities or geographical location of a person—the name of the person (if known); and
(viii) the period during which the 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
(x) any conditions subject to which premises may be entered, or a surveillance device may be used, under the warrant; and
(xi) the time within which a report in respect of the warrant must be made to the judge or magistrate under section 30K.
(2) In the case of a warrant referred to in sub-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.
(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
(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
(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
(1) A surveillance device warrant may authorise, as specified in the warrant, any one or more of the following—
(a) the use of a surveillance device on specified premises;
(b) the use of a surveillance device in or on a specified object or class of object;
(c) the use of a surveillance device in respect of the conversations, activities or geographical location of a specified person or a person whose identity is unknown.
(2) A surveillance device warrant
authorises—
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(a) for a warrant of a kind referred to in sub-section (1)(a)—
(i) the installation, use and maintenance of a surveillance device of the kind specified in the warrant on the specified premises; and
(ii) the entry, by force if necessary, onto the premises, or other specified premises adjoining or providing access to the premises, for any of the purposes referred to in sub-paragraph (i) or sub-section (3);
(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 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 object, or an object of the class, is reasonably believed to be or is likely to be, or other premises adjoining or providing access to those premises, for any of the purposes referred to in sub-paragraph (i) or sub-section (3);
(c) for a warrant of a kind referred to in sub-section (1)(c)—
(i) the installation, use and maintenance of a surveillance device of the kind specified in the warrant, on premises where the person is reasonably believed to be or likely to be; and
(ii) the entry, by force if necessary, onto the premises referred to in sub-paragraph (i), or other premises adjoining or providing access to those premises, for any of the purposes referred to in sub-paragraph (i) or sub-section (3).
(3) Each surveillance device warrant also
authorises—
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(a) the retrieval of the surveillance device; and
(b) the installation, use, maintenance and retrieval of any enhancement equipment in relation to the surveillance device; and
(c) the temporary removal of an object from premises for the purpose of the installation, maintenance or retrieval of the surveillance device or enhancement equipment and the return of the object 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
(e) the connection of the device or equipment to an electricity supply system and the use of electricity from that system to operate the surveillance device or enhancement equipment; and
(f) the connection of the 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 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 warrant in the installation, use, maintenance or retrieval of the surveillance device or enhancement equipment.
(4) A surveillance device warrant may authorise the doing of anything reasonably necessary to conceal the fact that anything has been done in relation to the installation, use, maintenance or retrieval of a surveillance device or enhancement equipment under the warrant.
(5) A law enforcement officer may use a surveillance device under a warrant only if he or she is acting in the performance of his or her duty.
(6) This section applies to a warrant subject to any conditions specified in the warrant.
(7) A surveillance device warrant cannot authorise the installation or use of a surveillance device outside this jurisdiction if—
(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 1987 ; or
(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 required under the Telecommunications (Interception) Act 1979 of the Commonwealth.
20. Extension and variation of surveillance device warrant
(1) A law enforcement officer to whom a surveillance device warrant has been issued (or another person on his or her behalf) may apply, at any time before the expiry of the warrant—
(a) for an extension of the warrant for a period not exceeding 90 days from the day on which it would otherwise expire; or
(b) for a variation of any of the other terms of the warrant.
(2) The application is to be made to—
(a) a Supreme Court judge, if the warrant was issued by a Supreme Court judge; or
(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.
(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 regard to the matters in section 17(2).
(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 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—
(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) 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 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.
20B. Discontinuance of use of surveillance device under warrant
(1) This section applies if a surveillance device warrant is issued to a law enforcement officer of a law enforcement agency.
(2) If the chief officer of the law enforcement agency is satisfied that the use of a surveillance device under the warrant is no longer necessary for the purpose of enabling evidence to be obtained of the commission of the 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 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 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 warrant is issued, or who is primarily responsible for executing the warrant, believes that use of a surveillance device under the warrant is no longer necessary for the purpose of enabling evidence to be obtained of the commission of the offence or the identity or location of the offender, he or she must inform the chief officer of the law enforcement agency immediately.
Subdivision 3—Retrieval Warrants
20C. Application for retrieval warrant
(1) A law enforcement officer (or another person on his or her behalf) may apply for the issue of a retrieval warrant in respect of a surveillance device that was lawfully installed on premises, or in or on an object, under a surveillance device warrant and which the law enforcement officer on reasonable grounds suspects or believes is still on those premises or in or on that object, or on other premises or in or on another object.
(2) An application may be made only with the approval of—
(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
(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 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
(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.
(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 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 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
(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 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 judge or magistrate who is to determine the application.
20E. Determining the application
(1) A Supreme Court judge or magistrate may issue a retrieval warrant if the judge or magistrate is satisfied—
(a) that there are reasonable grounds for the suspicion or belief founding the application for the warrant; and
(b) in the case of an unsworn application—that it would have been impracticable for an affidavit to have been prepared or sworn before the application was made; and
(c) in the case of a remote application—that it would have been impracticable for the application to have been made in person.
(2) In determining whether a retrieval warrant should be issued, the judge or magistrate must have regard to—
(a) the extent to which the privacy of any person is likely to be affected; and
(b) the public interest in retrieving the device sought to be retrieved.
20F. What must a retrieval warrant contain?
(1) A retrieval warrant must—
(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
(b) specify—
(i) the name of the applicant; and
(ii) the date the warrant is issued; and
(iii) the kind of surveillance device authorised to be retrieved; and
(iv) the premises or object from which the surveillance device is to be retrieved; and
(v) the period (not exceeding 90 days) during which the warrant is in force; and
(vi) the name of the law enforcement officer primarily responsible for executing the warrant; and
(vii) any conditions subject to which premises may be entered under the warrant; and
(viii) the time within which a report in respect of the warrant must be made to the judge or magistrate 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—
(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—
and cause those details to be entered in a register kept by the judge or magistrate for the purpose; and
(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
(1) A retrieval warrant (subject to any conditions specified in it) authorises—
(a) the retrieval of the surveillance device specified in the warrant and any enhancement equipment in relation to the device; and
(b) the entry, by force if necessary, onto the premises where the surveillance device is reasonably believed to be, or other premises adjoining or providing access to those premises, for the purpose of retrieving the device and equipment; and
(c) the breaking open of any thing for the purpose of the retrieval of the device and equipment; and
(d) if the device or equipment is installed on or in an object, the temporary removal of the object from any place where it is situated for the purpose of the retrieval of the device and equipment and the return of the object to that place; and
(e) the provision of assistance or technical expertise to the law enforcement officer primarily responsible for executing the warrant in the retrieval of the device or equipment.
(2) If the retrieval warrant authorises the retrieval of a tracking device, the warrant also authorises the use of the tracking device and any enhancement equipment in relation to the device solely for the purposes of the location and retrieval of the device or equipment.
(3) A retrieval warrant may authorise the doing of anything reasonably necessary to conceal the fact that anything has been done in relation to the retrieval of a surveillance device or enhancement equipment under the warrant.
20H. Revocation of retrieval warrant
(1) A retrieval warrant may be revoked at any time before the expiration of the period of validity specified in it by—
(a) a Supreme Court judge, if a Supreme Court judge issued the warrant; or
(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 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 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 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.".