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Surveillance Devices Bill 2004

Part 4 Use of certain surveillance devices without warrant

   

37   Use of optical surveillance devices without warrant

             (1)  A federal law enforcement officer acting in the course of his or her duties may, without warrant, use an optical surveillance device for any purpose:

                     (a)  if the officer belongs or is seconded to the Australian Federal Police—that is within the functions of the Australian Federal Police set out in section 8 of the Australian Federal Police Act 1979 ; or

                     (b)  if the officer belongs or is seconded to the Australian Crime Commission—that is within the functions of the Commission set out in section 7A of the Australian Crime Commission Act 1979 ;

if the use of that device does not involve:

                     (c)  entry onto premises without permission; or

                     (d)  interference without permission with any vehicle or thing.

             (2)  A State or Territory law enforcement officer acting in the course of his or her duties may, without warrant, use an optical surveillance device in the investigation of a relevant offence (other than a State offence that has a federal aspect) if the use of that device does not involve:

                     (a)  entry onto premises without permission; or

                     (b)  interference without permission with any vehicle or thing.

             (3)  A State or Territory law enforcement officer acting in the course of his or her duties may, without warrant, use an optical surveillance device in the location and safe recovery of a child to whom a recovery order relates if the use of that device does not involve:

                     (a)  a trespass on premises; or

                     (b)  interference without permission with any vehicle or thing.

38   Use of surveillance devices without warrant for listening to or recording words in limited circumstances

             (1)  A federal law enforcement officer acting in the course of his or her duties may, without warrant, use a surveillance device for any purpose involving listening to, or recording, words spoken by a person:

                     (a)  if the officer belongs or is seconded to the Australian Federal Police—that is within the functions of the Australian Federal Police set out in section 8 of the Australian Federal Police Act 1979 ; or

                     (b)  if the officer belongs or is seconded to the Australian Crime Commission—that is within the functions of the Commission set out in section 7A of the Australian Crime Commission Act 1979;

if the use of that device for that listening or recording purpose is confined to circumstances where:

                     (c)  the law enforcement officer is the speaker of the words or is a person, or is included in a class or group of persons, by whom the speaker of the words intends, or should reasonably expect, the words to be heard; or

                     (d)  the law enforcement officer listens to or records the words with the consent, express or implied, of a person who is permitted by paragraph (c) to listen to or record the words.

             (2)  A State or Territory law enforcement officer acting in the course of his or her duties and in the investigation of a relevant offence (other than a State offence that has a federal aspect) may, without warrant, use a surveillance device for any purpose involving listening to, or recording, words spoken by a person if the use of that device for that listening or recording purpose is confined to circumstances where:

                     (a)  the State or Territory law enforcement officer is the speaker of the words or is a person, or is included in a class or group of persons, by whom the speaker of the words intends, or should reasonably expect, the words to be heard; or

                     (b)  the State or Territory law enforcement officer listens to or records the words with the consent, express or implied, of a person who is permitted by paragraph (a) to listen to or record the words.

             (3)  A State or Territory law enforcement officer acting in the course of his or her duties and in relation to the location and safe recovery of a child to whom a recovery order relates may, without warrant, use a surveillance device for any purpose involving listening to, or recording, words spoken by a person if the use of that device for that listening or recording purpose is confined to circumstances where:

                     (a)  the State or Territory law enforcement officer is the speaker of the words or is a person, or is included in a class or group of persons, by whom the speaker of the words intends, or should reasonably expect, the words to be heard; or

                     (b)  the State or Territory law enforcement officer listens to or records the words with the consent, express or implied, of a person who is permitted by paragraph (a) to listen to or record the words

39   Use and retrieval of tracking devices without warrant in certain circumstances

             (1)  A law enforcement officer may, with the written permission of an appropriate authorising officer, use a tracking device without a warrant in the investigation of a relevant offence.

             (2)  If the law enforcement officer referred to in subsection (1) is 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 may, with the written permission of an appropriate authorising officer, use a tracking device without a warrant in the location and safe recovery of a child to whom a recovery order relates.

             (4)  Subsections (1) and (3) have effect despite any other law of the Commonwealth or of a State or self-governing Territory (including any principle of the common law) forbidding the use of such a device without a warrant.

             (5)  A tracking device authorisation given under subsection (1) or (3) may authorise the law enforcement officer to use more than one tracking device.

             (6)  If an appropriate authorising officer gives a tracking device authorisation under this section, an appropriate authorising officer may also authorise the retrieval, without a warrant, of a tracking device to which the tracking device authorisation relates.

             (7)  An appropriate authorising officer must not give permission under this section for the use, installation or retrieval of a tracking device if the installation of the device, or its retrieval, involves entry onto premises without permission or an interference with the interior of a vehicle without permission.

             (8)  For the purposes of obtaining the permission of an appropriate authorising officer, the law enforcement officer wishing to use that device:

                     (a)  must apply, orally or in writing, to the appropriate authorising officer; and

                     (b)  must address, in that application, the matters that would be required to be addressed if the law enforcement officer were making an application for a surveillance device warrant or a retrieval warrant, as the case requires.

             (9)  Paragraph 18(1)(b), subparagraph 18(2)(b)(i), paragraphs 18(3)(a), (b) and (g) and subsections 18(4), (6) and (7) apply in relation to a tracking device authorisation authorising the use of a tracking device as if:

                     (a)  references in those provisions to a surveillance device warrant were references to a tracking device authorisation authorising the use of a tracking device; and

                     (b)  references in those provisions to a surveillance device were references to a tracking device.

           (10)  Paragraphs 26(1)(a), (c), (d) and (e) and subsections 26(2) and (3) apply in relation to a tracking device authorisation authorising the retrieval of a tracking device as if:

                     (a)  references in those provisions to a retrieval warrant were references to a tracking device authorisation authorising the retrieval of a tracking device; and

                     (b)  references in those provisions to a surveillance device were references to a tracking device.

           (11)  A law enforcement officer may use a tracking device authorisation only if he or she is acting in the performance of his or her duty.

40   Record of tracking device authorisations to be kept

                   As soon as practicable after an appropriate authorising officer gives a tracking device authorisation, the officer must make a written record of the giving of that authorisation, including in the record:

                     (a)  the name of the applicant for the authorisation; and

                     (b)  the date and time the authorisation was given; and

                     (c)  if the authorisation authorises the use of a tracking device in relation to the investigation of an alleged relevant offence or offences—the alleged offence or offences in respect of which the authorisation is given; and

                     (d)  if the authorisation authorises the use of a tracking device in relation to a recovery order—the date the order was made and the name of the child to whom the order relates; and

                     (e)  if the authorisation authorises the use of a tracking device in or on an object or class of object—the object or class of object in or on which the use of the tracking device is authorised; and

                      (f)  if the authorisation authorises the use of a tracking device on a vehicle or class of vehicle—the vehicle or class of vehicle on which the use of the tracking device is authorised; and

                     (g)  if the authorisation authorises the use of a tracking device in respect of the conversations, activities or geographical location of a person—the name of the person (if known); and

                     (h)  if the authorisation authorises the retrieval of a tracking device—the premises or object from which the tracking device is to be retrieved; and

                      (i)  the name of the law enforcement officer primarily responsible for executing the authorisation; and

                      (j)  any conditions subject to which a tracking device may be used, under the authorisation.