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Surveillance Devices Bill 2004

Part 5 Extraterritorial operation of warrants

   

41   Definitions

             (1)  In this Part:

appropriate consenting official , in relation to a foreign country, means an official of that country having authority in that country to give consent to the extraterritorial use of surveillance devices in that country or on a vessel or aircraft registered under the laws of that country.

Australian fishing zone means the Australian fishing zone within the meaning of the Fisheries Management Act 1991.

contiguous zone , in relation to Australia, has the same meaning as in the Seas and Submerged Lands Act 1973.

territorial sea , in relation to Australia, has the same meaning as in the Seas and Submerged Lands Act 1973.

42   Extraterritorial operation of warrants

             (1)  If, before the issue of a warrant in relation to the investigation of a relevant offence on an application made by or on behalf of a federal law enforcement officer, it becomes apparent to the applicant that there will be a need for surveillance:

                     (a)  in a foreign country; or

                     (b)  on a vessel or aircraft that is registered under the law of a foreign country and is in or above waters beyond the outer limits of the territorial sea of Australia;

to assist in that investigation, the eligible Judge or nominated AAT member considering the application for the warrant must not permit the warrant to authorise that surveillance unless the Judge or member is satisfied that the surveillance has been agreed to by an appropriate consenting official of the foreign country.

             (2)  If:

                     (a)  application is made under section 33 by an appropriate authorising officer who is a federal law enforcement officer for approval of the giving of an emergency authorisation relating to the investigation of a relevant offence; and

                     (b)  before the completion of consideration of that application, it becomes apparent to the applicant that there will be a need for surveillance:

                              (i)  in a foreign country; or

                             (ii)  on a vessel or aircraft that is registered under the law of a foreign country and is in or above waters beyond the outer limits of the territorial sea of Australia;

                            to assist in the investigation to which the emergency authorisation related;

the eligible Judge or nominated AAT member to whom the application was made must not permit any warrant issued on consideration of that application to authorise that surveillance unless the Judge or member is satisfied that the surveillance has been agreed to by an appropriate consenting official of the foreign country.

             (3)  If:

                     (a)  a warrant has been issued in relation to the investigation of a relevant offence on an application by or on behalf of a federal law enforcement officer; and

                     (b)  after the issue of the warrant it becomes apparent to the law enforcement officer primarily responsible for executing the warrant that there will be a need for surveillance:

                              (i)  in a foreign country; or

                             (ii)  on a vessel or aircraft that is registered under the law of a foreign country and is in or above waters beyond the outer limits of the territorial sea of Australia;

                            to assist in that investigation;

the warrant is taken to permit that surveillance if, and only if, the surveillance has been agreed to by an appropriate consenting official of the foreign country.

             (4)  Despite subsections (1), (2) and (3), if:

                     (a)  a vessel that is registered under the law of a foreign country is in waters beyond the outer limits of the territorial sea of Australia but not beyond the outer limits of the contiguous zone of Australia; and

                     (b)  the relevant offence in respect of which it becomes apparent that surveillance on the vessel will be required is an offence relating to the customs, fiscal, immigration or sanitary laws of Australia;

there is no requirement for the agreement of an appropriate consenting official of the foreign country concerned in relation to that surveillance while the vessel is in such waters.

             (5)  Despite subsections (1), (2) and (3), if:

                     (a)  a vessel that is registered under the law of a foreign country is in waters beyond the outer limits of the territorial sea of Australia but not beyond the outer limits of the Australian fishing zone; and

                     (b)  the relevant offence in respect of which it becomes apparent that surveillance on the vessel will be required is an offence against section 100, 100A, 101 or 101A of the Fisheries Management Act 1991 ;

there is no requirement for the agreement of an appropriate consenting official of the foreign country concerned in relation to that surveillance while the vessel is in those waters.

             (6)  As soon as practicable after the commencement of surveillance under the authority of a warrant:

                     (a)  in a foreign country; or

                     (b)  in circumstances where consent to that surveillance is required—on a vessel or aircraft that is registered under the law of a foreign country;

the chief officer of the law enforcement agency to which the law enforcement officer who applied for the warrant belongs or is seconded must give the Minister evidence in writing that the surveillance has been agreed to by an appropriate consenting official of the foreign country.

             (7)  If a vessel or aircraft that is registered under the laws of a foreign country is in or above the territorial sea of another foreign country, subsections (1), (2) and (3) have effect as if the reference to an appropriate consenting official of the foreign country were a reference to an appropriate consenting official of each foreign country concerned.

             (8)  For the avoidance of doubt, there is no requirement for the agreement of an appropriate consenting official of the foreign country to the surveillance under the authority of a warrant of a vessel or aircraft of a foreign country that is in Australia or in or above waters within the outer limits of the territorial sea of Australia.

43   Evidence obtained from extraterritorial surveillance not to be tendered in evidence unless court satisfied properly obtained

                   Evidence obtained from surveillance undertaken in a foreign country in accordance with subsection 42(1), (2) or (3) in relation to a relevant offence cannot be tendered in evidence to a court in any proceedings relating to the relevant offence unless the court is satisfied that the surveillance was agreed to by an appropriate consenting official of the foreign country.