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Surveillance Devices Bill 2004

Part 6 Compliance and monitoring

Division 1 Restrictions on use, communication and publication of information

44   What is protected information?

             (1)  In this Act:

protected information means:

                     (a)  any information obtained from the use of a surveillance device under a warrant, an emergency authorisation or a tracking device authorisation; or

                     (b)  any information relating to:

                              (i)  an application for, the issue of, the existence of, or the expiration of, a warrant, an emergency authorisation or a tracking device authorisation; or

                             (ii)  an application for approval of powers exercised under an emergency authorisation; or

                     (c)  any information that is likely to enable the identification of a person, object or premises specified in a warrant, an emergency authorisation or a tracking device authorisation; or

                     (d)  any other information obtained by a law enforcement officer:

                              (i)  without the authority of a warrant or a tracking device authorisation; or

                             (ii)  without the authority of an emergency authorisation that was subsequently approved; or

                            (iii)  in a case where the information was obtained through the use of a surveillance device in a foreign country, or on a vessel or aircraft that is registered under the law of a foreign country and that is in or above waters beyond the outer limit of Australia’s territorial sea (within the meaning of section 41)—without the agreement of the appropriate consenting official of that foreign country, and of any other foreign country, whose agreement is required under section 42;

                            in contravention of the requirement for such a warrant, tracking device authorisation or emergency authorisation.

             (2)  For the avoidance of doubt, information obtained under an emergency authorisation falls under paragraph (a) and not paragraph (d) of the definition of protected information unless:

                     (a)  an eligible Judge or nominated AAT member refuses to approve the giving of the emergency authorisation; or

                     (b)  contrary to the requirement of section 33, no application for such an approval has been made.

45   Prohibition on use, recording, communication or publication of protected information or its admission in evidence

             (1)  A person commits an offence if:

                     (a)  the person uses, records, communicates or publishes any information; and

                     (b)  the information is protected information; and

                     (c)  the use, recording, communication or publication of the information is not permitted by this section.

Penalty:  Imprisonment for 2 years.

             (2)  A person commits an offence if:

                     (a)  the person uses, records, communicates or publishes any information; and

                     (b)  the information is protected information; and

                     (c)  the use, recording, communication or publication of the information is not permitted by this section; and

                     (d)  the use, recording, communication or publication of the information, endangers the health or safety of any person or prejudices the effective conduct of an investigation into a relevant offence.

Penalty:  Imprisonment for 10 years.

             (3)  Subject to subsections (4) and (5), protected information may not be admitted in evidence in any proceedings.

             (4)  Subsections (1), (2) and (3) do not apply to:

                     (a)  the use, recording, communication or publication of any information that has been disclosed in proceedings in open court lawfully; or

                     (b)  the use or communication of protected information by a person who believes on reasonable grounds that the use or communication is necessary to help prevent or reduce the risk of serious violence to a person or substantial damage to property; or

                     (c)  the communication to the Director-General (within the meaning of the Australian Security Intelligence Organisation Act 1979 ) of protected information that relates or appears to relate to any matter within the functions of that organisation; or

                     (d)  the communication to the agency head (within the meaning of the Intelligence Services Act 2001 ) of an agency (within the meaning of that Act) of protected information that relates or appears to relate to any matter within the functions of that agency; or

                     (e)  the use, recording or communication of:

                              (i)  protected information referred to in paragraph (c)—by an officer or employee of the Australian Security Intelligence Organisation; or

                             (ii)  protected information referred to in paragraph (d)—by a staff member (within the meaning of the Intelligence Services Act 2001 ) of an agency (within the meaning of that Act);

                            in the performance of his or her official functions; or

                      (f)  the communication of information to a foreign country or an appropriate authority of a foreign country, or the use of information so communicated, in accordance with the Mutual Assistance in Criminal Matters Act 1987 , if that communication or use relates to the investigation of an offence or the conduct of proceedings in respect of an offence against a law of that foreign country that is punishable by a maximum term of imprisonment of 3 years or more, by imprisonment for life or by the death penalty; or

             (5)  Protected information may be used, recorded, communicated or published, or may be admitted in evidence, if it is necessary to do so for any of the following purposes:

                     (a)  the investigation of a relevant offence (including a State or Territory relevant offence but not including a relevant offence referred to in paragraph (d) or (h)) or the making of a report on the outcome of such an investigation;

                     (b)  the making of a decision whether or not to bring a prosecution for a relevant offence (including a State or Territory relevant offence but not including a relevant offence referred to in paragraph (d) or (h));

                     (c)  a relevant proceeding (including State or Territory relevant proceedings but not including a relevant proceeding in respect of a relevant offence referred to in paragraph (d) or (h));

                     (d)  an investigation of a complaint against, or into the conduct of, a public officer within the meaning of this Act and also any subsequent investigation or prosecution of a relevant offence arising directly from the investigation of the complaint, or into the conduct;

                     (e)  the making of a decision in relation to the appointment, term of appointment, termination of the appointment, or retirement, of a person referred to in paragraph (d);

                      (f)  the keeping of records and the making of reports by a law enforcement agency under Division 2;

                     (g)  an inspection by the Ombudsman under section 54;

                     (h)  an investigation under the Privacy Act 1988 or any other law of the Commonwealth concerning the privacy of personal information and also any subsequent investigation or prosecution of a relevant offence arising directly from that first-mentioned investigation.

             (6)  Paragraphs (4)(f) and (5)(a), (b) and (c) do not authorise:

                     (a)  the use, recording, communication or publication of information of the kind referred to in paragraph (d) of the definition of protected information in section 44; or

                     (b)  the giving in evidence of protected information of the kind referred to in paragraph (d) of that definition;

regardless of whether that information is also information of the kind referred to in paragraph (b) or (c) of that definition.

             (7)  If protected information obtained through the use of a surveillance device by a law enforcement officer of a particular law enforcement agency (the originating agency ):

                     (a)  is communicated to another law enforcement agency (by communicating it to the chief officer or another officer of that agency); or

                     (b)  is communicated to any agency that is not a law enforcement agency (other than the Australian Security Intelligence Organisation and the agencies within the meaning if the Intelligence Services Act 2001 ) (by communicating it to the officer in charge of that agency or to another officer of that agency);

for a particular purpose, the protected information that has been so communicated:

                     (c)  may be communicated from one officer to another within that agency or organisation for that purpose only; and

                     (d)  must not, except for the purpose of bringing a relevant proceeding, or a State or Territory relevant proceeding, be communicated to any person who is not a member of that agency or organisation.

             (8)  A reference in subsection (5) to a relevant offence is a reference to any relevant offence, whether or not the offence in respect of which the relevant warrant or emergency authorisation was issued or given.

             (9)  In this section:

State or Territory relevant offence means a relevant offence against the law of a State or self-governing Territory that is punishable by a maximum term of imprisonment of 3 years or more or for life.

State or Territory relevant proceeding means:

                     (a)  the prosecution of a State or Territory relevant offence; or

                     (b)  a proceeding for the confiscation, forfeiture or restraint of property, or for the imposition of a pecuniary penalty, in relation to a State or Territory relevant offence; or

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

                     (d)  a disciplinary offence against a public officer; or

                     (e)  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 State or Territory relevant offence; or

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

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

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

46   Dealing with records obtained by use of surveillance devices

             (1)  The chief officer of a law enforcement agency:

                     (a)  must ensure that every record or report comprising protected information is kept in a secure place that is not accessible to people who are not entitled to deal with the record or report; and

                     (b)  must destroy or cause to be destroyed any record or report referred to in paragraph (a) if satisfied that it is not likely to be required in connection with a purpose referred to in subsection 45(4) or (5).

             (2)  The officer in charge of any agency that is not a law enforcement agency but that, as described in subsection 45(4) or (5), receives records or reports obtained by use of a surveillance device:

                     (a)  must ensure that every record or report that is so received is kept in a secure place that is not accessible to people who are not entitled to deal with the record or report; and

                     (b)  must destroy or cause to be destroyed any record or report referred to in paragraph (a) if satisfied that it is not likely to be required in connection with a purpose referred to in subsection 45(4) or (5).

             (3)  Subsections (1) and (2) do not apply to a record or report that is received into evidence in legal proceedings or disciplinary proceedings.

47   Protection of surveillance device technologies and methods

             (1)  In a proceeding, a person may object to the disclosure of information on the ground that the information, if disclosed, could reasonably be expected to reveal details of surveillance device technology or methods of installation, use or retrieval of surveillance devices.

             (2)  If the person conducting or presiding over the proceeding is satisfied that the ground of objection is made out, he or she may order that the person who has the information not be required to disclose it in the proceeding.

             (3)  In determining whether or not to make an order under subsection (2), the person conducting or presiding over the proceeding must take into account whether disclosure of the information:

                     (a)  is necessary for the fair trial of the defendant; or

                     (b)  is in the public interest.

             (4)  Subsection (2) does not affect a provision of another law under which a law enforcement officer cannot be compelled to disclose information or make statements in relation to the information.

             (5)  If the person conducting or presiding over a proceeding is satisfied that publication of any information disclosed in the proceeding could reasonably be expected to reveal details of surveillance device technology or methods of installation, use or retrieval of surveillance devices, the person must make any orders prohibiting or restricting publication of the information that he or she considers necessary to ensure that those details are not revealed.

             (6)  Subsection (5) does not apply to the extent that the person conducting or presiding over the proceeding considers that the interests of justice require otherwise.

             (7)  In this section:

proceeding includes a proceeding before a court, tribunal or Royal Commission.

48   Protected information in the custody of a court, tribunal or Royal Commission

                   A person is not entitled to search any protected information in the custody of a court, tribunal or Royal Commission unless the court, tribunal or Royal Commission otherwise orders in the interests of justice.



 

Division 2 Reporting and record-keeping

49   Report on each warrant or authorisation

             (1)  The chief officer of each law enforcement agency to which there belongs or is seconded a law enforcement officer to whom:

                     (a)  a warrant is issued; or

                     (b)  an emergency authorisation is given; or

                     (c)  a tracking device authorisation is given;

must, as soon as practicable after the warrant or authority ceases to be in force:

                     (d)  make a report to the Minister in accordance with this section; and

                     (e)  give to the Minister a copy of each such warrant or authorisation, and of any instrument revoking, extending or varying such a warrant or authorisation.

             (2)  In the case of a surveillance device warrant, or an authorisation referred to in paragraph (1)(b) or (c), the report must:

                     (a)  state whether the warrant or authorisation was executed; and

                     (b)  if so:

                              (i)  state the name of the person primarily responsible for the execution of the warrant or authorisation; and

                             (ii)  state the name of each person involved in the installation, maintenance or retrieval of the surveillance device; and

                            (iii)  state the kind of surveillance device used; and

                            (iv)  state the period during which the device was used; and

                             (v)  state the name, if known, of any person whose conversations or activities were overheard, recorded, monitored, listened to or observed by the use of the device; and

                            (vi)  state the name, if known, of any person whose location was determined by the use of a tracking device; and

                           (vii)  give details of any premises on which the device was installed or any place at which the device was used; and

                           (viii)  give details of any object in or on which the device was installed and any premises where the object was located when the device was installed; and

                            (ix)  if the warrant is issued or the authorisation given in respect of the investigation of a relevant offence—give details of the benefit to the investigation of the use of the device and of the general use made or to be made of any evidence or information obtained by the use of the device; and

                             (x)  if the warrant is issued or the authorisation given in respect of the location and safe recovery of a child to whom a recovery order relates—give details of use of the device in assisting with the location and safe recovery of the child; and

                            (xi)  give details of the communication of evidence or information obtained by the use of the device to persons other than officers of the agency; and

                           (xii)  give details of the compliance with the conditions (if any) to which the warrant or authorisation was subject; and

                     (c)  if the warrant or authorisation was extended or varied, state:

                              (i)  the number of extensions or variations; and

                             (ii)  the reasons for them.

             (3)  In the case of a retrieval warrant, the report must:

                     (a)  give details of any premises entered, anything opened and any object removed and replaced under the warrant; and

                     (b)  state whether the surveillance device was retrieved under the warrant; and

                     (c)  if the device was not retrieved, state the reason why; and

                     (d)  give details of the compliance with the conditions (if any) to which the warrant was subject.

50   Annual reports

             (1)  The chief officer of a law enforcement agency must submit a report to the Minister that includes the following information in respect of each financial year:

                     (a)  the number of applications for warrants made by or on behalf of, and the number of warrants issued to, law enforcement officers of the agency during that year; and

                     (b)  the number of applications for emergency authorisations made by, and the number of emergency authorisations given to, law enforcement officers of the agency during that year; and

                     (c)  the number of applications for tracking device authorisations made by, and the number of such authorisations given to, law enforcement officers of the agency during that year; and

                     (d)  the number of remote applications for warrants made by or on behalf of law enforcement officers of the agency during that year; and

                     (e)  the number of applications for warrants, emergency authorisations or tracking device authorisations made by or on behalf of law enforcement officers of the agency that were refused during that year, and the reasons for refusal; and

                      (f)  the number of applications for extensions of warrants made by or on behalf of law enforcement officers of the agency during that year, the number of extensions granted or refused and the reasons why they were granted or refused; and

                     (g)  the number of arrests made by law enforcement officers of the agency during that year on the basis (wholly or partly) of information obtained by the use of a surveillance device under a warrant, emergency authorisation or tracking device authorisation; and

                     (h)  the number of instances during that year in which the location and safe recovery of children to whom recovery orders related was assisted (wholly or partly) by information obtained by the use of a surveillance device under a warrant, emergency authorisation or tracking device authorisation; and

                      (i)  the number of prosecutions for relevant offences that were commenced during that year in which information obtained by the use of a surveillance device under a warrant, emergency authorisation or tracking device authorisation was given in evidence and the number of those prosecutions in which a person was found guilty; and

                      (j)  any other information relating to the use of surveillance devices and the administration of this Act that the Minister considers appropriate.

             (2)  The information referred to in paragraphs (1)(a), (b) and (c) must be presented in such a way as to identify the number of warrants issued, emergency authorisations given, and tracking device authorisations given, in respect of each different kind of surveillance device.

             (3)  The report must be submitted to the Minister as soon as practicable after the end of each financial year, and in any event within 3 months after the end of the financial year.

             (4)  The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives it.

51   Keeping documents connected with warrants, emergency authorisations and tracking device authorisations

                   The chief officer of a law enforcement agency must cause the following to be kept:

                     (a)  each warrant issued to a law enforcement officer of the agency;

                     (b)  each instrument of revocation given to the chief officer under subsection 20(4) or 27(4);

                     (c)  each record made under section 31 in relation to an emergency authorisation given to a law enforcement officer of the agency;

                     (d)  each record made under section 40 in relation to a tracking device authorisation given to a law enforcement officer of the agency;

                     (e)  each written application for an emergency authorisation made by a law enforcement officer of the agency;

                      (f)  each written application for a tracking device authorisation made by a law enforcement officer of the agency;

                     (g)  a copy of each application made by or on behalf of a law enforcement officer of the agency for:

                              (i)  a warrant; or

                             (ii)  extension or variation of a warrant;

                     (h)  a copy of each application made under section 33 by or on behalf of an appropriate authorising officer for approval of the giving of an emergency authorisation to a law enforcement officer of the agency;

                      (j)  a copy of each report made to the Minister under section 49;

                     (k)  a copy of each certificate issued by an appropriate authorising officer of the agency concerned under section 62.

52   Other records to be kept

                   The chief officer of a law enforcement agency must cause the following to be kept:

                     (a)  a statement as to whether each application made by or on behalf of a law enforcement officer of the agency for a warrant, or for the extension or variation of a warrant, was granted, refused or withdrawn;

                     (b)  a statement as to whether each application made by a law enforcement officer of the agency for an emergency authorisation was granted, refused or withdrawn;

                     (c)  a statement as to whether each application made by or on behalf of an appropriate authorising officer for approval of the giving of an emergency authorisation to a law enforcement officer of the agency was granted, refused or withdrawn;

                     (d)  a statement as to whether each application made by a law enforcement officer of the agency for a tracking device authorisation was granted, refused or withdrawn;

                     (e)  details of each use by the agency, or by a law enforcement officer of the agency, of information obtained by the use of a surveillance device by a law enforcement officer of the agency;

                      (f)  details of each communication by a law enforcement officer of the agency to a person other than a law enforcement officer of the agency of information obtained by the use of a surveillance device by a law enforcement officer of the agency;

                     (g)  details of each occasion when, to the knowledge of a law enforcement officer of the agency, information obtained by the use of a surveillance device by a law enforcement officer of the agency was given in evidence in a relevant proceeding;

                     (h)  details of each occasion when, to the knowledge of a law enforcement officer of the agency, information obtained by the use of a surveillance device by a law enforcement officer of the agency was used in the location and safe recovery of a child to whom a recovery order related;

                      (j)  details of the destruction of records or reports under paragraph 46(1)(b).

53   Register of warrants, emergency authorisations and tracking device authorisations

             (1)  The chief officer of a law enforcement agency must cause a register of warrants, emergency authorisations and tracking device authorisations sought by law enforcement officers of that agency to be kept.

             (2)  The register is to specify, for each warrant sought by or on behalf of a law enforcement officer of the agency:

                     (a)  the date the warrant was issued or refused; and

                     (b)  the name of the eligible Judge or nominated AAT member who issued or refused to issue the warrant; and

                     (c)  if the warrant was issued:

                              (i)  the name of the law enforcement officer named in the warrant as the person primarily responsible for executing it; and

                             (ii)  if the warrant was issued in relation to a relevant offence—the relevant offence in relation to which the warrant was issued; and

                            (iii)  if the warrant was issued in relation to a recovery order—the date of issue of the recovery order and the name of the child to whom the order related; and

                            (iv)  the period during which the warrant is in force; and

                             (v)  details of any variation or extension of the warrant.

             (3)  The register is to specify, for each emergency authorisation sought by a law enforcement officer of the agency:

                     (a)  the date the emergency authorisation was given or refused; and

                     (b)  the name of the appropriate authorising officer who gave or refused to give the emergency authorisation; and

                     (c)  if the emergency authorisation was given:

                              (i)  the name of the law enforcement officer to whom the authorisation was given; and

                             (ii)  if the authorisation related to a relevant offence—the relevant offence in relation to which it was given; and

                            (iii)  if the authorisation related to a recovery order—the date of issue of the recovery order and the name of the child to whom the order related; and

                            (iv)  the date on which the application for approval of powers exercised under the authorisation was made; and

                             (v)  whether that application for approval of powers exercised under the authorisation was successful or not.

             (4)  The register is to specify, for each tracking device authorisation sought by a law enforcement officer of the agency:

                     (a)  the date the tracking device authorisation was given or refused; and

                     (b)  the name of the appropriate authorising officer who gave or refused to give the tracking device authorisation; and

                     (c)  if the tracking device authorisation was given:

                              (i)  the name of the law enforcement officer to whom the authorisation was given; and

                             (ii)  if the authorisation related to a relevant offence—the relevant offence in relation to which it was given; and

                            (iii)  if the authorisation related to a recovery order—the date of issue of the recovery order and the name of the child to whom the order related.



 

Division 3 Inspections

54   Appointment of inspecting officers

                   The Ombudsman may, by appointment in writing, under this Division, appoint members of the Ombudsman’s staff to be inspecting officers.

55   Inspection of records

             (1)  The Ombudsman must inspect the records of a law enforcement agency to determine the extent of compliance with this Act by the agency and law enforcement officers of the agency.

             (2)  For the purpose of an inspection under this section, the Ombudsman:

                     (a)  after notifying the chief officer of the agency, may enter at any reasonable time premises occupied by the agency; and

                     (b)  is entitled to have full and free access at all reasonable times to all records of the agency that are relevant to the inspection; and

                     (c)  despite any other law, is entitled to make copies of, and to take extracts from, records of the agency; and

                     (d)  may require a member of staff of the agency to give the Ombudsman any information that the Ombudsman considers necessary, being information that is in the member’s possession, or to which the member has access, and that is relevant to the inspection.

             (3)  The chief officer must ensure that members of staff of the agency give the Ombudsman any assistance the Ombudsman reasonably requires to enable the Ombudsman to perform functions under this section.

             (4)  While an operation is being conducted under a warrant, emergency authorisation or tracking device authorisation, the Ombudsman may refrain from inspecting any records of the agency concerned that are relevant to the obtaining or execution of that warrant or authorisation.

56   Power to obtain relevant information

             (1)  If the Ombudsman has reasonable grounds to believe that a law enforcement officer of a particular law enforcement agency is able to give information relevant to an inspection under this Division of the agency’s records, subsections (2) and (3) have effect.

             (2)  The Ombudsman may, by writing given to the law enforcement officer, require the officer to give the information to the Ombudsman:

                     (a)  by writing signed by the officer; and

                     (b)  at a specified place and within a specified period.

             (3)  The Ombudsman may, by writing given to the law enforcement officer, require the officer to attend:

                     (a)  before a specified inspecting officer; and

                     (b)  at a specified place; and

                     (c)  within a specified period or at a specified time on a specified day;

to answer questions relevant to the inspection.

             (4)  If the Ombudsman:

                     (a)  has reasonable grounds to believe that a law enforcement officer of a particular law enforcement agency is able to give information relevant to an inspection under this Division of the agency’s records; and

                     (b)  does not know the officer’s identity;

the Ombudsman may, by writing given to the chief officer of the agency, require the chief officer, or a person nominated by the chief officer, to attend:

                     (c)  before a specified inspecting officer; and

                     (d)  at a specified place; and

                     (e)  within a specified period or at a specified time on a specified day;

to answer questions relevant to the inspection.

             (5)  The place, and the period or the time and day, specified in a requirement under this section, must be reasonable having regard to the circumstances in which the requirement is made.

             (6)  A person must not refuse:

                     (a)  to attend before a person; or

                     (b)  to give information; or

                     (c)  to answer questions;

when required to do so under this section.

Penalty for an offence against this subsection: Imprisonment for 6 months.

57   Ombudsman to be given information and access despite other laws

             (1)  Despite any other law, a person is not excused from giving information, answering a question, or giving access to a document, as and when required under this Division, on the ground that giving the information, answering the question, or giving access to the document, as the case may be, would contravene a law, would be contrary to the public interest or might tend to incriminate the person or make the person liable to a penalty, but:

                     (a)  the information, the answer, or the fact that the person has given access to the document, as the case may be; and

                     (b)  any information or thing (including a document) obtained as a direct or indirect consequence of giving the information, answering the question or giving access to the document;

is not admissible in evidence against the person except in a proceeding by way of a prosecution for an offence against section 45 or against Part 7.4 or 7.7 of the Criminal Code .

             (2)  Nothing in section 45 or any other law prevents an officer of an agency from:

                     (a)  giving information to an inspecting officer (whether orally or in writing and whether or not in answer to a question); or

                     (b)  giving access to a record of the agency to an inspecting officer;

for the purposes of an inspection under this Division of the agency’s records.

             (3)  Nothing in section 45 or any other law prevents an officer of an agency from making a record of information, or causing a record of information to be made, for the purposes of giving the information to a person as permitted by subsection (2).

58   Exchange of information between Ombudsman and State inspecting authorities

             (1)  In this section:

State or Territory agency means a law enforcement agency of a State or Territory within the meaning of the law of that State or Territory that is of a similar nature to this Act.

State or Territory inspecting authority , in relation to a State or Territory agency, means the authority that, under the law of the State or Territory concerned, has the function of making inspections of a similar kind to those provided for in section 54 when the State or Territory agency is exercising powers under the law of that State or Territory that is of a similar nature to this Act.

             (2)  The Ombudsman may give information that:

                     (a)  relates to a State or Territory agency; and

                     (b)  was obtained by the Ombudsman under this Act;

to the State or Territory inspecting authority in relation to the agency.

             (3)  The Ombudsman may only give information to an authority under subsection (2) if the Ombudsman is satisfied that the giving of the information is necessary to enable the authority to perform its functions in relation to the State or Territory agency.

             (4)  The Ombudsman may receive from a State or Territory inspecting authority information relevant to the performance of the Ombudsman’s functions under this Act.

59   Delegation by Ombudsman

             (1)  The Ombudsman may delegate:

                     (a)  to an APS employee responsible to the Ombudsman; or

                     (b)  to a person holding an equivalent office to the Ombudsman under the law of a State or Territory or to an employee responsible to that person;

all or any of the Ombudsman’s powers under this Division other than a power to report to the Minister.

             (2)  A delegate must, upon request by a person affected by the exercise of any power delegated to the delegate, produce the instrument of delegation, or a copy of the instrument, for inspection by the person.

60   Ombudsman not to be sued

                   The Ombudsman, an inspecting officer, or a person acting under an inspecting officer’s direction or authority, is not liable to an action, suit or proceeding for or in relation to an act done, or omitted to be done, in good faith in the performance or exercise, or the purported performance or exercise, of a function or power conferred by this Division.

61   Report on inspection

             (1)  The Ombudsman must make a written report to the Minister at 6 monthly intervals on the results of each inspection under section 54.

             (2)  The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives it.



 

Division 4 General

62   Evidentiary certificates

             (1)  An appropriate authorising officer for a law enforcement officer, or a person assisting the appropriate authorising officer, may issue a written certificate signed by the officer or person, setting out any facts he or she considers relevant with respect to:

                     (a)  anything done by the law enforcement officer or by a person assisting or providing technical expertise to him or her:

                              (i)  in connection with the execution of a warrant; or

                             (ii)  in accordance with an emergency authorisation; or

                            (iii)  in accordance with a tracking device authorisation; or

                     (b)  anything done by the law enforcement officer in connection with:

                              (i)  the communication by a person to another person; or

                             (ii)  the making use of; or

                            (iii)  the making of a record of; or

                            (iv)  the custody of a record of;

                            information obtained by the use of a surveillance device under a warrant, emergency authorisation or tracking device authorisation.

             (2)  A certificate issued under subsection (1) is admissible in evidence in any proceedings as prima facie evidence of the matters stated in the certificate.

             (3)  Subsection (2) does not apply to a certificate to the extent that the certificate sets out facts with respect to anything done in accordance with an emergency authorisation unless the giving of that authorisation has been approved under section 35.

             (4)  For the purposes of this section, a document purporting to be a certificate issued under subsection (1) is, unless the contrary intention is established, to be taken to be such a certificate and to have been duly given.

             (5)  A certificate must not be admitted in evidence under subsection (2) in prosecution proceedings unless the person charged or a solicitor who has appeared for the person in those proceedings has, at least 14 days before the certificate is sought to be so admitted, been given a copy of the certificate together with reasonable evidence of the intention to produce the certificate as evidence in those proceedings.

             (6)  Subject to subsection (7), if, under subsection (2), a certificate is admitted in evidence in prosecution proceedings, the person charged may require the person giving the certificate to be called as a witness for the prosecution and cross-examined as if he or she had given evidence of the matters stated in the certificate.

             (7)  Subsection (6) does not entitle the person charged to require the person giving a certificate to be called as a witness for the prosecution unless the court before which the prosecution proceedings are brought, by order, allows the person charged to require the person giving the certificate to be so called.

             (8)  Any evidence given in support, or in rebuttal, of a matter stated in a certificate given under subsection (2) or (3) must be considered on its merits and the credibility and probative value of such evidence must be neither increased nor diminished by reason of this section.