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Surveillance Devices Bill 2004

Part 1 Preliminary

   

1   Short title

                   This Act may be cited as the Surveillance Devices Act 2004 .

2   Commencement

                   This Act commences on the day on which it receives the Royal Assent.

3   Purposes

                   The main purposes of this Bill are:

                     (a)  to establish procedures for law enforcement officers to obtain warrants, emergency authorisations and tracking device authorisations for the installation and use of surveillance devices in relation to criminal investigations and the location and safe recovery of children to whom recovery orders relate; and

                     (b)  to restrict the use, communication and publication of information that is obtained through the use of surveillance devices or that is otherwise connected with surveillance device operations; and

                     (c)  to impose requirements for the secure storage and destruction of records, and the making of reports, in connection with surveillance device operations.

4   Relationship to other laws and matters

             (1)  Except where there is express provision to the contrary, this Act is not intended to affect any other law of the Commonwealth, any law of a State, or any law of a self-governing Territory, that prohibits or regulates the use of surveillance devices.

             (2)  For the avoidance of doubt, except where express provision is made to the contrary, nothing in this Act applies to any body, organisation or agency, however described, that is involved in the collection of information or intelligence.

             (3)  This Act is not intended to limit a discretion that a court has:

                     (a)  to admit or exclude evidence in any proceeding; or

                     (b)  to stay criminal proceedings in the interests of justice.

             (4)  For the avoidance of doubt, it is intended that a warrant may be issued, or an emergency authorisation or tracking device authorisation given, under this Act for the installation, use, maintenance or retrieval of a surveillance device in relation to a relevant offence or a recovery order.

5   Schedule(s)

                   Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

6   Definitions

             (1)  In this Act:

AFP employee has the same meaning as in the Australian Federal Police Act 1979 .

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

appropriate authorising officer , in relation to a law enforcement officer, means a person for the time being holding office or acting as:

                     (a)  if the law enforcement officer is a law enforcement officer belonging to or seconded to the Australian Federal Police:

                              (i)  the Commissioner of Police; or

                             (ii)  a Deputy Commissioner of Police; or

                            (iii)  a senior executive AFP employee who is authorised in writing by the Commissioner for the purposes of this subparagraph; and

                     (b)  if the law enforcement officer is a law enforcement officer belonging to or seconded to the Australian Crime Commission:

                              (i)  the Chief Executive Officer of the Commission; or

                             (ii)  a member of the staff of the Commission who is an SES employee and who is authorised in writing by the Chief Executive Officer of the Commission for the purposes of this subparagraph; and

                     (c)  if the law enforcement officer is a law enforcement officer belonging to or seconded to the police force of a State or Territory:

                              (i)  the Commissioner or the person holding equivalent rank; or

                             (ii)  an Assistant Commissioner or a person holding equivalent rank; or

                            (iii)  a Superintendent or a person holding equivalent rank;

                            of the police force of that State or Territory.

Australian Crime Commission means the Australian Crime Commission established by the Australian Crime Commission Act 2002 .

business day means a day other than a Saturday, a Sunday or a public holiday in the particular State or Territory in which an appropriate authorising officer applies for approval of the exercise of powers under an emergency authorisation.

chief officer means the person for the time being holding office or acting as:

                     (a)  in relation to the Australian Federal Police—the Commissioner of Police; and

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

                     (c)  in relation to the police force of a State or Territory—the Commissioner of Police in that police force or the person holding equivalent rank.

computer means any electronic device for storing or processing information.

data surveillance device means any device or program 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.

disciplinary proceeding means a proceeding of a disciplinary nature under a law of the Commonwealth or of a State or Territory.

eligible Judge means an eligible Judge within the meaning of section 12.

emergency authorisation means an emergency authorisation given under Part 3.

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.

federal law enforcement officer means a law enforcement officer referred to in paragraph (a) or (b) of the definition of law enforcement officer .

inspecting officer means a person appointed by the Ombudsman under section 54 to be an inspecting officer.

install includes attach.

law enforcement agency means the following agencies:

                     (a)  the Australian Federal Police;

                     (b)  the Australian Crime Commission;

                     (c)  the police force of each State or Territory.

law enforcement officer means:

                     (a)  in relation to the Australian Federal Police—the Commissioner of Police, a Deputy Commissioner of Police, any AFP employee, any special member or any person who is seconded to the Australian Federal Police; or

                     (b)  in relation to the Australian Crime Commission—the Chief Executive Officer of the Australian Crime Commission or any other person who is covered by a paragraph of the definition of member of the staff of the ACC in section 4 of the A ustralian Crime Commission Act 2002 ; or

                     (c)  an officer (however described) of the police force of a State or Territory or any person who is seconded to that police force.

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.

nominated AAT member means a person in respect of whom a nomination under section 13 is in force.

Ombudsman means the person holding office as the Commonwealth Ombudsman under the Ombudsman Act 1976.

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.

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 within or beyond Australia.

prosecution , in relation to a criminal offence, includes all stages in the prosecution of that offence, including a committal hearing.

protected information has the meaning given in section 44.

public officer means a person employed by, or holding an office established by or under a law of, the Commonwealth, a State or a Territory or a person employed by a public authority of the Commonwealth, a State or a Territory.

record includes:

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

                     (b)  a record in digital form; and

                     (c)  a documentary record prepared from a record referred to in paragraph (a) or (b).

recovery order means an order made by the Family Court of Australia under section 67U of the Family Law Act 1975 .

relevant offence means:

                     (a)  an offence against the law of the Commonwealth that is punishable by a maximum term of imprisonment of 3 years or more or for life; or

                     (b)  an offence against a law of a State that has a federal aspect and that is punishable by a maximum term of imprisonment of 3 years or more or for life; or

                     (c)  an offence against section 15 or 18 of the Financial Transaction Reports Act 1988 ; or

                     (d)  an offence against section 100, 100A, 101, or 101A of the Fisheries Management Act 1991 ; or

                     (e)  an offence that is prescribed by the regulations.

relevant proceeding means:

                     (a)  the prosecution of a relevant offence; or

                     (b)  a proceeding for the confiscation, forfeiture or restraint of property, or for the imposition of a pecuniary penalty, in connection with a relevant offence, and any related proceeding; or

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

                     (d)  a proceeding concerning the validity of a warrant, an emergency authorisation or a tracking device authorisation; or

                     (e)  a disciplinary proceeding against a public officer; or

                      (f)  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 a relevant offence; or

                     (g)  a proceeding under subsection 13(2) of the Mutual Assistance in Criminal Matters Act 1987 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, being an offence punishable by a maximum term of imprisonment of 3 years or more, by imprisonment for life or by the death penalty; or

                     (h)  the authorisation, under section 13A of the Mutual Assistance in Criminal Matters Act 1987 , of material to be made available to a foreign country for use in the investigation into, or proceedings in relation to, an offence against the laws of that country; or

                      (i)  proceedings for an order under section 67X of the Family Law Act 1975 ; or

                      (j)  a proceeding for the taking of evidence under section 43 of the Extradition Act 1988 , in so far as the proceeding relates to a relevant offence; or

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

                      (l)  a proceeding of the International Criminal Court; or

                    (m)  a proceeding by way of a bail application that relates to a prosecution for a relevant offence; or

                     (n)  a proceeding for review of a decision to refuse such a bail application; or

                     (o)  a proceeding for review of a decision to grant such a bail application.

remote application for a warrant means an application referred to in section 15 or 23.

report of 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 Division 3 of Part 2.

State offence that has a federal aspect has the meaning given by section 7.

State or Territory law enforcement officer means a law enforcement officer referred to in paragraph (c) of the definition of law enforcement officer .

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 Division 2 of Part 2 or under subsection 35(4) or (5).

sworn includes affirmed.

tracking device means any electronic device capable of being used to determine or monitor the location of a person or an object or the status of an object.

tracking device authorisation means a permission given under section 39 by an appropriate authorising officer for a law enforcement officer to use or retrieve a tracking device without a warrant.

unsworn application for a warrant means an application referred to in subsections 14(6) and (7) or 22(4) and (5).

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

vehicle includes aircraft and vessel.

warrant means surveillance device warrant or retrieval warrant.

             (2)  In this Act, a reference to the law enforcement officer primarily responsible for executing a warrant, emergency authorisation or tracking device authorisation is a reference to:

                     (a)  the person named in the warrant or authorisation as such a person; or

                     (b)  if there is no such person named—the person nominated as such a person by the chief officer of the agency concerned;

whether or not that person is physically present for any step in the execution of the warrant or authorisation.

             (3)  In this Act:

                     (a)  a reference to a person who belongs or is seconded to a law enforcement agency, in the case of the Australian Crime Commission, is a reference to any person who is covered by a paragraph of the definition of member of the staff of the ACC in section 4 of the A ustralian Crime Commission Act 2002 ; and

                     (b)  a reference to a person who belongs or is seconded to the Australian Crime Commission is to be similarly construed.

7   State offence that has a federal aspect

             (1)  In this Act, a State offence has a federal aspect if, and only if:

                     (a)  both:

                              (i)  the State offence is not an ancillary offence; and

                             (ii)  assuming that the provision creating the State offence had been enacted by the Parliament of the Commonwealth instead of by the Parliament of the State—the provision would have been a valid law of the Commonwealth; or

                     (b)  both:

                              (i)  the State offence is an ancillary offence that relates to a particular primary offence; and

                             (ii)  assuming that the provision creating the primary offence had been enacted by the Parliament of the Commonwealth instead of by the Parliament of the State—the provision would have been a valid law of the Commonwealth; or

                     (c)  assuming that the Parliament of the Commonwealth had enacted a provision that created an offence penalising the specific acts or omissions involved in committing the State offence—that provision would have been a valid law of the Commonwealth; or

                     (d)  both:

                              (i)  the Australian Federal Police or the Australian Crime Commission (the relevant agency ) is investigating a matter relating to a relevant criminal activity that relates to an offence against a law of the Commonwealth or a Territory; and

                             (ii)  if the relevant agency is investigating, or were to investigate, a matter relating to a relevant criminal activity that relates to the State offence—that investigation is, or would be, incidental to the investigation mentioned in subparagraph (i).

             (2)  For the purposes of paragraph (1)(c), the specificity of the acts or omissions involved in committing a State offence is to be determined having regard to the circumstances in which the offence was committed (whether or not those circumstances are expressed to be elements of the offence).

             (3)  A State offence is taken to be covered by paragraph (1)(c) if:

                     (a)  the State offence affects the interests of:

                              (i)  the Commonwealth; or

                             (ii)  an authority of the Commonwealth; or

                            (iii)  a constitutional corporation; or

                     (b)  the State offence was committed by a constitutional corporation; or

                     (c)  the State offence was committed in a Commonwealth place; or

                     (d)  the State offence involved the use of a postal service or other like service; or

                     (e)  the State offence involved an electronic communication; or

                      (f)  the State offence involved trade or commerce:

                              (i)  between Australia and places outside Australia; or

                             (ii)  among the States; or

                            (iii)  within a Territory, between a State and a Territory or between 2 Territories; or

                     (g)  the State offence involved:

                              (i)  banking (other than State banking not extending beyond the limits of the State concerned); or

                             (ii)  insurance (other than State insurance not extending beyond the limits of the State concerned); or

                     (h)  the State offence relates to a matter outside Australia.

             (4)  Subsection (3) does not limit paragraph (1)(c).

             (5)  In this section:

ancillary offence , in relation to an offence (the primary offence ), means:

                             (a)  an offence of conspiring to commit the primary offence; or

                             (b)  an offence of aiding, abetting, counselling or procuring, or being in any way knowingly concerned in, the commission of the primary offence; or

                             (c)  an offence of attempting to commit the primary offence.

authority of the Commonwealth has the same meaning as in section 3AA of the Crimes Act 1914 .

Commonwealth place has the same meaning as in the Commonwealth Places (Application of Laws) Act 1970 .

constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.

electronic communication means a communication of information:

                             (a)  whether in the form of text; or

                             (b)  whether in the form of data; or

                             (c)  whether in the form of speech, music or other sounds; or

                             (d)  whether in the form of visual images (animated or otherwise); or

                             (e)  whether in any other form; or

                             (f)  whether in any combination of forms;

by means of guided and/or unguided electromagnetic energy.

State offence means an offence against a law of a State.

8   External Territories

                   This Act extends to every external Territory.

9   Binding the Crown

             (1)  This Act binds the Crown in each of its capacities.

             (2)  This Act does not make the Crown liable to be prosecuted for an offence.