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Tuesday, 30 November 2004
Page: 65


Senator GREIG (4:41 PM) —I move Democrat amendment (17) on sheet 4360:

(17) Clause 22, page 26 (line 6), after “lawfully”, insert “or unlawfully”.

This amendment relates to the retrieval of surveillance devices and, in particular, what to do in the event that a surveillance device has been unlawfully installed. Proposed section 22(1) of the bill currently provides that a law enforcement officer may apply for the issue of a retrieval warrant in respect of surveillance devices which have been lawfully installed. We are concerned about circumstances in which a surveillance device has not been lawfully installed—for example, if it is discovered that there were some irregularities with the original application warrant. While we obviously do not want to encourage the unlawful installation of surveillance devices, we suspect that this is something which may happen from time to time. In those circumstances, the illegality of the surveillance device is likely to prevent any evidence obtained from being used in court. However, we do believe that it should be open to the police to apply for a retrieval warrant to retrieve the unlawfully installed device. We note that proposed section 22(1) specifically targets circumstances in which a surveillance device warrant has expired and, therefore, the police no longer have any power to enter the premise or use force to retrieve the device. We believe it makes sense to extend this subsection to circumstances in which the police lack that power because the device has been unlawfully installed.