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Surveillance Devices Bill (No. 2) 2004

Part 3 Emergency authorisations

   

28   Emergency authorisation—serious risks to person or property

             (1)  A law enforcement officer may apply to an appropriate authorising officer for an emergency authorisation for the use of a surveillance device if, in the course of an investigation of a relevant offence, the law enforcement officer reasonably suspects that:

                     (a)  an imminent risk of serious violence to a person or substantial damage to property exists; and

                     (b)  the use of a surveillance device is immediately necessary for the purpose of dealing with that risk; and

                     (c)  the circumstances are so serious and the matter is of such urgency that the use of a surveillance device is warranted; and

                     (d)  it is not practicable in the circumstances to apply for a surveillance device warrant.

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

             (3)  The application may be made orally, in writing or by telephone, fax, e-mail or any other means of communication.

             (4)  The appropriate authorising officer may give the emergency authorisation if satisfied that there are reasonable grounds for the suspicion founding the application.

29   Emergency authorisation—urgent circumstances relating to recovery order

             (1)  A law enforcement officer may apply to an appropriate authorising officer for an emergency authorisation for the use of a surveillance device if:

                     (a)  a recovery order is in force; and

                     (b)  the law enforcement officer reasonably suspects that:

                              (i)  the circumstances are so urgent as to warrant the immediate use of a surveillance device; and

                             (ii)  it is not practicable in the circumstances to apply for a surveillance device warrant.

             (2)  The application may be made orally, in writing or by telephone, fax, e-mail or any other means of communication.

             (3)  The appropriate authorising officer may give the emergency authorisation if satisfied that the recovery order is in force and that there are reasonable grounds for the suspicion founding the application.

30   Emergency authorisation—risk of loss of evidence

             (1)  If:

                     (a)  a law enforcement officer is conducting an investigation into:

                              (i)  an offence against section 233B of the Customs Act 1901 ; or

                             (ii)  an offence against section 233BAA of the Customs Act 1901 (with respect to goods listed in Schedule 4 to the Customs (Prohibited Imports) Regulations 1956 or in Schedule 8 or 9 to the Customs (Prohibited Exports) Regulations 1958 ); or

                            (iii)  an offence against Part IIIA of the Crimes Act 1914 ; or

                            (iv)  an offence under the Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990 ; or

                             (v)  an offence under Division 72 of the Criminal Code ; or

                            (vi)  an offence against section 73.2, 80.1 or 91.1 of the Criminal Code ; or

                           (vii)  an offence under Division 101, 102 or 103 of the Criminal Code ; or

                           (viii)  an offence under Division 270 of the Criminal Code ;

                            or more than one offence; and

                     (b)  the law enforcement officer reasonably suspects that:

                              (i)  the use of the surveillance device is immediately necessary to prevent the loss of any evidence relevant to that investigation; and

                             (ii)  the circumstances are so serious and the matter is of such urgency that the use of the surveillance device is warranted; and

                            (iii)  it is not practicable in the circumstances to apply for a surveillance device warrant;

the law enforcement officer may apply to an appropriate authorising officer for an emergency authorisation for the use of a surveillance device.

             (2)  The application may be made orally, in writing or by telephone, fax, e-mail or any other means of communication.

             (3)  The appropriate authorising officer may give the emergency authorisation if satisfied that:

                     (a)  an investigation is being conducted into an offence referred to in paragraph (1)(a); and

                     (b)  there are reasonable grounds for the suspicion referred to in paragraph (1)(b).

31   Record of emergency authorisations to be made

                   As soon as practicable after an appropriate authorising officer gives an emergency 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)  the nature of the authorisation given.

32   Attributes of emergency authorisations

             (1)  An emergency authorisation may authorise the law enforcement officer to whom it is given:

                     (a)  to use more than one kind of surveillance device; and

                     (b)  to use more than one surveillance device of any particular kind.

             (2)  An emergency authorisation may authorise anything that a surveillance device warrant may authorise.

             (3)  A law enforcement officer may use a surveillance device under an emergency authorisation only if he or she is acting in the performance of his or her duty.

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

33   Application for approval of emergency authorisation

             (1)  Within 48 hours after giving an emergency authorisation to a law enforcement officer, the appropriate authorising officer who gave the authorisation (or another person on that appropriate authorising officer’s behalf) must apply to an eligible Judge or to a nominated AAT member for approval of the giving of the emergency authorisation.

             (2)  The application:

                     (a)  must specify:

                              (i)  the name of the applicant for the approval; and

                             (ii)  the kind or kinds of surveillance device to which the emergency authorisation relates and, if a warrant is sought, the nature and duration of the warrant; and

                     (b)  must be supported by an affidavit setting out the grounds on which the approval (and warrant, if any) is sought; and

                     (c)  must be accompanied by a copy of the written record made under section 31 in relation to the emergency authorisation.

             (3)  The eligible Judge or nominated AAT member may refuse to consider the application until the applicant gives the Judge or member all the information the Judge or member requires about the application in the way the Judge or member requires.

34   Consideration of application

             (1)  Before deciding an application for approval of the giving of an emergency authorisation given under section 28, the eligible Judge or nominated AAT member considering the application must, in particular, and being mindful of the intrusive nature of using a surveillance device, consider the following:

                     (a)  the nature of the risk of serious violence to a person or substantial damage to property;

                     (b)  the extent to which issuing a surveillance device warrant would have helped reduce or avoid the risk;

                     (c)  the extent to which law enforcement officers could have used alternative methods of investigation to help reduce or avoid the risk;

                     (d)  how much the use of alternative methods of investigation could have helped reduce or avoid the risk;

                     (e)  how much the use of alternative methods of investigation would have prejudiced the safety of the person or property because of delay or for another reason;

                      (f)  whether or not it was practicable in the circumstances to apply for a surveillance device warrant.

             (2)  Before deciding an application for approval of the giving of an emergency authorisation given under section 29, the eligible Judge or nominated AAT member considering the application must, in particular, and being mindful of the intrusive nature of using a surveillance device, consider the following:

                     (a)  the urgency of enforcing the recovery order;

                     (b)  the extent to which use of a surveillance device would assist in the location and safe recovery of the child to whom the recovery order relates;

                     (c)  the extent to which law enforcement officers could have used alternative methods to assist in the location and safe recovery of the child;

                     (d)  how much the use of alternative methods to assist in the location and safe recovery of the child might have prejudiced the effective enforcement of the recovery order;

                     (e)  whether or not it was practicable in the circumstances to apply for a surveillance device warrant.

             (3)  Before deciding an application for approval of the giving of an emergency authorisation given under section 30, the eligible Judge or nominated AAT member must, in particular, and being mindful of the intrusive nature of using a surveillance device, consider the following:

                     (a)  the nature of the risk of the loss of evidence;

                     (b)  the extent to which issuing a surveillance device warrant would have helped reduce or avoid the risk;

                     (c)  the extent to which law enforcement officers could have used alternative methods of investigation to help reduce or avoid the risk;

                     (d)  how much the use of alternative methods of investigation could have helped reduce or avoid the risk;

                     (e)  whether or not it was practicable in the circumstances to apply for a surveillance device warrant.

35   Judge or nominated AAT member may approve giving of emergency authorisations

             (1)  After considering an application for approval of the giving of an emergency authorisation under section 28, the eligible Judge or nominated AAT member may approve the application if satisfied that there were reasonable grounds to suspect that:

                     (a)  there was a risk of serious violence to a person or substantial damage to property; and

                     (b)  using a surveillance device may have helped reduce the risk; and

                     (c)  it was not practicable in the circumstances to apply for a surveillance device warrant.

             (2)  After considering an application for approval of the giving of an emergency authorisation under section 29 in relation to a recovery order, the eligible Judge or nominated AAT member may approve the application if satisfied that:

                     (a)  the recovery order was in force at the time the emergency authorisation was given; and

                     (b)  there were reasonable grounds to suspect that:

                              (i)  the enforcement of the recovery order was urgent; and

                             (ii)  using a surveillance device may have assisted in the prompt location and safe recovery of the child to whom the order relates; and

                            (iii)  it was not practicable in the circumstances to apply for a surveillance device warrant.

             (3)  After considering an application for approval of the giving of an emergency authorisation under section 30, the eligible Judge or nominated AAT member may approve the application if satisfied that:

                     (a)  there were reasonable grounds to suspect that:

                              (i)  there was a risk of loss of evidence; and

                             (ii)  using the surveillance device may have helped reduce the risk; and

                     (b)  it was not practicable in the circumstances to apply for a surveillance device warrant.

             (4)  If, under subsection (1), (2) or (3), the eligible Judge or nominated AAT member approves the giving of an emergency authorisation, the Judge or member may:

                     (a)  unless paragraph (b) applies—issue a surveillance device warrant for the continued use of the surveillance device as if the application for the approval were an application for a surveillance device warrant under Division 2 of Part 2; or

                     (b)  if the Judge or member is satisfied that since the application for the emergency authorisation the activity that required surveillance has ceased—order that the use of the surveillance device cease.

             (5)  If, under subsection (1), (2) or (3), the eligible Judge or nominated AAT member does not approve the giving of an emergency authorisation, the Judge or member may:

                     (a)  order that the use of the surveillance device cease; or

                     (b)  if the Judge or member is of the view that although the situation did not warrant the emergency authorisation at the time that authorisation was given, the use of a surveillance device warrant under Division 2 of Part 2 is currently justified—issue a surveillance device warrant for the subsequent use of such a device as if the application for the approval were an application for a surveillance device warrant under Division 2 of Part 2.

             (6)  In any case, the eligible Judge or nominated AAT member may order that any information obtained from or relating to the exercise of powers under the emergency authorisation, or any record of that information, be dealt with in a manner specified in the order, not being a manner that involves the destruction of that information.

36   Admissibility of evidence

                   If the giving of an emergency authorisation is approved under section 35, any evidence obtained because of the exercise of powers under that authorisation is not inadmissible in any proceeding only because the evidence was obtained before the approval.