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Surveillance Devices Bill (No. 2) 2004

Part 1 Preliminary

   

1   Short title

                   This Act may be cited as the Surveillance Devices Act (No. 2) 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                   Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.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; and

                     (d)  if the law enforcement officer is a law enforcement officer belonging to or seconded to the New South Wales Crime Commission:

                              (i)  a member of the Commission; or

                             (ii)  a member of the staff of the Commission (as defined by the New South Wales Crime Commission Act 1985 of New South Wales) who occupies an office or position at an equivalent level to that of a senior executive officer within the meaning of the Public Sector Employment and Management Act 2002 of New South Wales and who is authorised in writing by the Commissioner for the Commission for the purposes of this subparagraph; and

                     (e)  if the law enforcement officer is a law enforcement officer belonging to or seconded to the Independent Commission Against Corruption:

                              (i)  the Commissioner for the Independent Commission Against Corruption; or

                             (ii)  an Assistant Commissioner for the Independent Commission Against Corruption; or

                            (iii)  an officer of the Commission (as defined by the Independent Commission Against Corruption Act 1988 of New South Wales) who occupies an office or position at an equivalent level to that of a senior executive officer within the meaning of the Public Sector Employment and Management Act 2002 of New South Wales and who is authorised in writing by the Commissioner for the Commission for the purposes of this subparagraph; and

                      (f)  if the law enforcement officer is a law enforcement officer belonging to or seconded to the Police Integrity Commission:

                              (i)  the Commissioner for the Police Integrity Commission; or

                             (ii)  an Assistant Commissioner for the Commission; or

                            (iii)  a member of the staff of the Police Integrity Commission (as defined by the Police Integrity Commission Act 1996 of New South Wales) who occupies an office or position at an equivalent level to that of a senior executive officer within the meaning of the Public Sector Employment and Management Act 2002 of New South Wales and who is authorised in writing by the Commissioner for the Commission for the purposes of this subparagraph; and

                     (g)  if the law enforcement officer is a law enforcement officer belonging to or seconded to the Crime and Misconduct Commission—a commissioner of the Crime and Misconduct Commission (as defined by the Crime and Misconduct Act 2001 of Queensland); or

                     (h)  if the law enforcement officer is a law enforcement officer belonging to or seconded to the Corruption and Crime Commission—the Commissioner of the Corruption and Crime Commission.

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

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; and

                     (d)  in the case of the New South Wales Crime Commission—the Commissioner for the Commission; and

                     (e)  in relation to the Independent Commission Against Corruption—the Commissioner for the Commission; and

                      (f)  in relation to the Police Integrity Commission—the Commissioner for the Commission; and

                     (g)  in relation to the Crime and Misconduct Commission—the chairperson of the Commission; and

                     (h)  in relation to the Corruption and Crime Commission—the Commissioner of the Commission.

computer means any electronic device for storing or processing information.

Corruption and Crime Commission means the Corruption and Crime Commission established by the Corruption and Crime Commission Act 2003 of Western Australia.

Crime and Misconduct Commission means the Crime and Misconduct Commission of Queensland.

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 .

Independent Commission Against Corruption means the Independent Commission Against Corruption constituted by the Independent Commission Against Corruption Act 1988 of New South Wales.

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;

                     (d)  the New South Wales Crime Commission;

                     (e)  the Independent Commission Against Corruption;

                      (f)  the Police Integrity Commission;

                     (g)  the Crime and Misconduct Commission;

                     (h)  the Corruption and Crime Commission.

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; or

                     (d)  in relation to the New South Wales Crime Commission—a member of the Commission, or a member of the staff of the Commission, as defined by the New South Wales Crime Commission Act 1985 of New South Wales; or

                     (e)  in relation to the Independent Commission Against Corruption—an officer of the Commission, as defined by the Independent Commission Against Corruption Act 1988 of New South Wales; or

                      (f)  in relation to the Police Integrity Commission—an officer of the Commission as defined by the Police Integrity Commission Act 1996 of New South Wales; or

                     (g)  in relation to the Crime and Misconduct Commission—an authorised commission officer as defined by the Crime and Misconduct Act 2001 of Queensland; or

                     (h)  in relation to the Corruption and Crime Commission—an officer of the Commission as defined by the Corruption and Crime Commission Act 2003 of Western Australia.

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.

New South Wales Crime Commission means the New South Wales Crime Commission constituted by the New South Wales Crime Commission Act 1985 of New South Wales.

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.

Police Integrity Commission means the Police Integrity Commission constituted by the Police Integrity Commission Act 1996 of New South Wales.

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:

                     (a)  an order under section 67U of the Family Law Act 1975 ; or

                     (b)  an order for a warrant for the apprehension or detention of a child under subregulation 15(1) or 25(4) of the Family Law (Child Abduction Convention) Regulations 1986 .

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), (d), (e), (f), (g) or (h) 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, subject to subsection (3), 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)  If the chief officer of a law enforcement agency becomes satisfied that a law enforcement officer of the agency who is, under subsection (2) or under a previous operation of this subsection, the law enforcement officer primarily responsible for executing a warrant, emergency authorisation or tracking device authorisation, ceases, for any reason, to have responsibility for executing the warrant or authorisation:

                     (a)  the chief officer may, by instrument in writing, nominate another person as the law enforcement officer primarily responsible for executing the warrant or authorisation; and

                     (b)  with effect from the execution of the instrument or such later time as is specified in the instrument, that other person becomes the law enforcement officer primarily responsible for executing the warrant or authorisation.

             (4)  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

                   An offence against a law of a State is taken, for the purposes of this Act, to be a State offence that has a federal aspect:

                     (a)  in a case where the offence is being investigated by the Australian Federal Police—if it would be taken to be a State offence that has a federal aspect under section 4AA of the Australian Federal Police Act 1979 ; and

                     (b)  in a case where the offence is being investigated by the Australian Crime Commission—if it would be taken to be a State offence that has a federal aspect under section 4A of the Australian Crime Commission Act 2002 ; and

                     (c)  in any other case—if it would be taken to be a State offence that has a federal aspect if either of the sections referred to in paragraphs (a) and (b) were to apply.

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.