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Surveillance Devices Bill 2004

Part 2 Warrants

Division 1 Introduction

10   Types of warrant

             (1)  The following types of warrant may be issued under this Part:

                     (a)  a surveillance device warrant;

                     (b)  a retrieval warrant.

             (2)  A warrant may be issued:

                     (a)  in respect of more than one kind of surveillance device; and

                     (b)  in respect of more than one surveillance device of any particular kind.

11   Who may issue warrants?

                   Any warrant under this Part may be issued by an eligible Judge or by a nominated AAT member.

12   Eligible Judges

             (1)  In this section, unless the contrary intention appears:

eligible Judge means a person in relation to whom a consent under subsection (2) and a declaration under subsection (3) are in force.

Judge means a person who is a Judge of a court created by the Parliament.

             (2)  A Judge may, by writing, consent to be declared an eligible Judge by the Minister under subsection (3).

             (3)  The Minister may, by writing, declare Judges in relation to whom consents are in force under subsection (2) to be eligible Judges for the purposes of this Act.

             (4)  Any function or power conferred on the Judge under this Act is so conferred only in a personal capacity and not as a court or a member of a court.

             (5)  An eligible Judge has, in relation to the performance or exercise of a function or power conferred on an eligible Judge by this Act, the same protection and immunity as a Justice of the High Court has in relation to proceedings in the High Court.

13   Nominated AAT members

             (1)  The Minister may, by writing, nominate a person who holds one of the following appointments to the Administrative Appeals Tribunal to issue warrants under this Part:

                     (a)  Deputy President;

                     (b)  full-time senior member;

                     (c)  part-time senior member;

                     (d)  member.

             (2)  Despite subsection (1), the Minister must not nominate a person who holds an appointment as a part-time senior member or a member of the Tribunal unless the person:

                     (a)  is enrolled as a legal practitioner of the High Court, of another federal court or of the Supreme Court of a State or of the Australian Capital Territory; and

                     (b)  has been so enrolled for not less than 5 years.

             (3)  A nomination ceases to have effect if:

                     (a)  the nominated AAT member ceases to hold an appointment described in subsection (1); or

                     (b)  the Minister, by writing, withdraws the nomination.

             (4)  A nominated AAT member has, in relation to the performance or exercise of a function or power conferred on a nominated AAT member by this Act, the same protection and immunity as a Justice of the High Court has in relation to proceedings in the High Court.



 

Division 2 Surveillance device warrants

14   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 suspects on reasonable grounds that:

                     (a)  one or more relevant offences have been, are being, are about to be, or are likely to be, committed; and

                     (b)  an investigation into those offences is being, will be, or is likely to be, conducted; and

                     (c)  the use of a surveillance device is necessary in the course of that investigation for the purpose of enabling evidence to be obtained of the commission of the relevant offences or the identity or location of the offenders.

             (2)  If the application is being made by or on behalf of a State or Territory law enforcement officer, the reference in subsection (1) to a relevant offence does not include a reference to a State offence that has a federal aspect.

             (3)  A law enforcement officer (or another person on his or her behalf) may apply for the issue of a surveillance device warrant if:

                     (a)  a recovery order is in force; and

                     (b)  the law enforcement officer suspects on reasonable grounds that the use of a surveillance device may assist in the location and safe recovery of the child to whom the recovery order relates.

             (4)  The application under subsection (1) or (3) may be made to an eligible Judge or to a nominated AAT member.

             (5)  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 or devices 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.

             (6)  If a law enforcement officer believes that:

                     (a)  the immediate use of a surveillance device is necessary for a purpose referred to in paragraph (1)(c) or may assist as described in paragraph (3)(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.

             (7)  If subsection (6) applies, the applicant must:

                     (a)  provide as much information as the eligible Judge or nominated AAT member considers is reasonably practicable in the circumstances; and

                     (b)  not later than 72 hours after the making of the application, send a duly sworn affidavit to the Judge or member, whether or not a warrant has been issued.

15   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 14 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 eligible Judge or to the nominated AAT member who is to determine the application.

16   Determining the application

             (1)  An eligible Judge or a nominated AAT member may issue a surveillance device warrant if satisfied:

                     (a)  in the case of a warrant sought in relation to a relevant offence—that there are reasonable grounds for the suspicion founding the application for the warrant; and

                     (b)  in the case of a warrant sought in relation to a recovery order—that such an order is in force and that there are reasonable grounds for the suspicion founding the application for the warrant; and

                     (c)  in the case of an unsworn application—that it would have been impracticable for an affidavit to have been sworn or prepared before the application was made; and

                     (d)  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 eligible Judge or nominated AAT member must have regard to:

                     (a)  in the case of a warrant sought in relation to a relevant offence—the nature and gravity of the alleged offence; and

                     (b)  in the case of a warrant sought to assist in the location and safe recovery of a child to whom a recovery order relates—the circumstances that gave rise to the making of the order; and

                     (c)  the extent to which the privacy of any person is likely to be affected; and

                     (d)  the existence of any alternative means of obtaining the evidence or information sought to be obtained; and

                     (e)  the likely evidentiary or intelligence value of any evidence or information sought to be obtained; and

                      (f)  any previous warrant sought or issued under this Division in connection with the same alleged offence or the same recovery order.

17   What must a surveillance device warrant contain?

             (1)  A surveillance device warrant must:

                     (a)  state that the eligible Judge or nominated AAT member issuing the warrant is satisfied of the matters referred to in subsection 16(1) and has had regard to the matters referred to in subsection 16(2); and

                     (b)  specify:

                              (i)  the name of the applicant; and

                             (ii)  if the warrant relates to one or more alleged relevant offences—the alleged offences in respect of which the warrant is issued; and

                            (iii)  if the warrant relates to a recovery order—the date the order was made and the name of the child to whom the order relates; and

                            (iv)  the date the warrant is issued; and

                             (v)  the surveillance device or devices authorised to be used; and

                            (vi)  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

                           (vii)  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

                           (viii)  if the warrant authorises the use of a surveillance device in respect of the conversations, activities or location of a person—the name of the person (if known) or the fact that the person’s identity is unknown; and

                            (ix)  the period during which the warrant is in force, being a period not exceeding 90 days; and

                             (x)  the name of the law enforcement officer primarily responsible for executing the warrant; and

                            (xi)  any conditions subject to which premises may be entered, or a surveillance device may be used, under the warrant.

             (2)  In the case of a warrant authorising the use of a surveillance device on premises that are vehicles, the warrant need only specify the class of vehicle in relation to which the use of the surveillance device is authorised.

             (3)  A warrant must be signed by the person issuing it and include his or her name.

             (4)  As soon as practicable after completing and signing a warrant issued on a remote application, the person issuing it must:

                     (a)  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

                     (b)  give the warrant to the applicant while retaining a copy of the warrant for the person’s own record.

18   What a surveillance device warrant authorises

             (1)  A surveillance device warrant (subject to any conditions specified in it) may authorise 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 location of a specified person or a person whose identity is unknown.

             (2)  A surveillance device warrant authorises:

                     (a)  for a warrant of a kind referred to in paragraph (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, and onto other specified premises adjoining or providing access to the premises, for any of the purposes referred to in subparagraph (i) or subsection (3); and

                     (b)  for a warrant of a kind referred to in paragraph (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, and onto other premises adjoining or providing access to those premises, for any of the purposes referred to in subparagraph (i) or subsection (3); and

                     (c)  for a warrant of a kind referred to in paragraph (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, or other premises adjoining or providing access to those premises, for any of the purposes referred to in subparagraph (i) or subsection (3).

             (3)  Each surveillance device warrant also authorises:

                     (a)  the retrieval of the surveillance device; and

                     (b)  the installation, use, maintenance and retrieval of enhancement equipment in relation to the surveillance device; and

                     (c)  the temporary removal of an object or vehicle from premises for the installation, maintenance or retrieval of the surveillance device or enhancement equipment and the return of the object or vehicle to the premises; and

                     (d)  the breaking open of anything for the installation, maintenance or retrieval of the surveillance device or enhancement equipment; and

                     (e)  the connection of the surveillance device or enhancement equipment to any source of electricity and the use of electricity from that source to operate the device or equipment; and

                      (f)  the connection of the surveillance device or enhancement 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 device or equipment; and

                     (g)  the provision of assistance or technical expertise to the law enforcement officer named in 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 surveillance device warrant may authorise the interference with property of a person who is not the subject of the investigation in respect of which the warrant was issued but, if the interference would be on premises not specified in the warrant, only if the person issuing the warrant is satisfied that it is necessary to do so in order to give effect to the warrant.

             (6)  A law enforcement officer may use a surveillance device under a warrant only in the performance of his or her duty.

             (7)  Nothing in this section authorises the doing of anything for which a warrant would be required under the Telecommunications (Interception) Act 1979.

19   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 an eligible Judge or to a nominated AAT member and must be accompanied by the original warrant.

             (3)  Sections 14 and 15 apply, with any necessary changes, to an application under this section as if it were an application for the warrant.

             (4)  The Judge or member may grant an application if satisfied that the matters referred to in subsection 16(1) still exist, having regard to the matters in subsection 16(2).

             (5)  If the Judge or member grants the application, the Judge or member 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.

20   Revocation of surveillance device warrant

             (1)  A surveillance device warrant may, by instrument in writing, be revoked by an eligible Judge or nominated AAT member on his or her own initiative at any time before the expiration of the period of validity specified in the warrant.

             (2)  If the circumstances set out in paragraphs 21(2)(a) and (b) or 21(3)(a) and (b) apply in relation to a surveillance device warrant—the chief officer of the law enforcement agency to which the law enforcement officer to whom the warrant was issued belongs or is seconded must, by instrument in writing, revoke the warrant.

             (3)  The instrument revoking a warrant must be signed by the eligible Judge, the nominated AAT member or the chief officer of the law enforcement agency, as the case requires.

             (4)  If an eligible Judge or nominated AAT member revokes a warrant, he or she must give a copy of the instrument of revocation to the chief officer of the law enforcement agency to which the law enforcement officer to whom the warrant was issued belongs or is seconded.

             (5)  If:

                     (a)  an eligible Judge or nominated AAT member revokes a warrant; and

                     (b)  at the time of the revocation, a law enforcement officer is executing the warrant;

the law enforcement officer is not subject to any civil or criminal liability for any act done in the proper execution of that warrant before the officer is made aware of the revocation.

21   Discontinuance of use of surveillance device under warrant

             (1)  This section applies if a surveillance device warrant is issued to a law enforcement officer.

             (2)  If:

                     (a)  the surveillance device warrant has been sought by or on behalf of a law enforcement officer in relation to a relevant offence; and

                     (b)  the chief officer of the law enforcement agency to which the law enforcement officer belongs or is seconded is satisfied that the use of a surveillance device under the warrant sought is no longer necessary for the purpose of enabling evidence to be obtained of the commission of the relevant offence or the identity or location of the offender;

the chief officer must, in addition to revoking the warrant under section 20, take the steps necessary to ensure that use of the surveillance device authorised by the warrant is discontinued.

             (3)  If:

                     (a)  a surveillance device warrant has been sought by or on behalf of a law enforcement officer in relation to a recovery order; and

                     (b)  the chief officer of the law enforcement agency to which the law enforcement officer belongs or is seconded is satisfied that the use of a surveillance device is no longer required for the purpose of locating and safely recovering the child to whom the recovery order relates;

the chief officer must, in addition to revoking the warrant under section 20, take the steps necessary to ensure that use of the surveillance device authorised by the warrant is discontinued.

             (4)  If the chief officer of a law enforcement agency is notified that a warrant has been revoked by an eligible Judge or a nominated AAT member under section 20, he or she must take the steps necessary to ensure that use of the surveillance device authorised by the warrant is discontinued as soon as practicable.

             (5)  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:

                     (a)  if the warrant was issued in relation to a relevant offence—of enabling evidence to be obtained of the commission of the relevant offence or the identity or location of the offender; or

                     (b)  if the warrant was issued in relation to a recovery order—of enabling the location and safe recovery of the child to whom the order relates;

he or she must immediately inform the chief officer of the law enforcement agency to which he or she belongs or is seconded.



 

Division 3 Retrieval warrants

22   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 that the law enforcement officer suspects on reasonable grounds is still on those premises or in or on that object, or on other premises or in or on another object.

             (2)  The application may be made to an eligible Judge or to a nominated AAT member.

             (3)  Subject to this section, the application must be supported by an affidavit setting out the grounds on which the retrieval warrant is sought.

             (4)  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 the application for a retrieval warrant is made;

the application may be made before an affidavit is prepared or sworn.

             (5)  If subsection (4) applies, the applicant must:

                     (a)  provide as much information as the eligible Judge or nominated AAT member considers is reasonably practicable in the circumstances; and

                     (b)  not later than 72 hours following the making of the application, send a duly sworn affidavit to the eligible Judge or nominated AAT member who determined the application, whether or not a warrant has been issued.

23   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 22 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 eligible Judge or nominated AAT member who is to determine the application.

24   Determining the application

             (1)  An eligible Judge or nominated AAT member may issue a retrieval warrant if the Judge or member is satisfied:

                     (a)  that there are reasonable grounds for the suspicion 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 sworn or prepared 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 eligible Judge or nominated AAT member 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.

25   What must a retrieval warrant contain?

             (1)  A retrieval warrant must:

                     (a)  state that the eligible Judge or nominated AAT member is satisfied of the matters referred to in subsection 24(1) and has had regard to the matters referred to in subsection 24(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.

             (2)  A warrant must be signed by the person issuing it and include his or her name.

             (3)  As soon as practicable after completing and signing a warrant issued on a remote application, the person issuing it must:

                     (a)  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

                     (b)  give the warrant to the applicant while retaining a copy of the warrant for the person’s own record.

26   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, and onto 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 retrieving the device and equipment; and

                     (d)  if the device or equipment is installed on or in an object or vehicle—the temporary removal of the object or vehicle from any place where it is situated for the purpose of retrieving the device and equipment and returning the object or vehicle to that place; and

                     (e)  the provision of assistance or technical expertise to the law enforcement officer named in 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 but cannot authorise the use, for any purpose, of the surveillance device specified in the warrant.

27   Revocation of retrieval warrant

             (1)  A retrieval warrant may, by instrument in writing, be revoked by an eligible Judge or a nominated AAT member on his or her own initiative at any time before the expiration of the period of validity specified in the warrant.

             (2)  If the chief officer of the law enforcement agency to which the law enforcement officer to whom a retrieval warrant was issued belongs or is seconded is satisfied that the grounds for issue of the retrieval warrant no longer exist—the chief officer must, by instrument in writing, revoke the warrant.

             (3)  The instrument revoking a warrant must be signed by the eligible Judge, the nominated AAT member or the chief officer of the law enforcement agency, as the case requires.

             (4)  If an eligible Judge or nominated AAT member revokes a warrant, he or she must give a copy of the instrument of revocation to the chief officer of the law enforcement agency to which the law enforcement officer to whom the warrant was issued belongs or is seconded.

             (5)  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.