Crimes (Surveillance Devices) Act 2010

This Act is the Crimes (Surveillance Devices) Act 2010.

The dictionary at the end of this Act is part of this Act.

Note 1 The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere in this Act.

For example, the signpost definition ‘protected information, for division 5.1—see section 33.’ means that the term ‘protected information’ is defined in that section for that division.

Note 2 A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

A note included in this Act is explanatory and is not part of this Act.

Note See the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

Other legislation applies in relation to offences against this Act.

Note 1 Criminal Code

The Criminal Code, ch 2 applies to all offences against this Act (see Code, pt 2.1).

The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability).

Note 2 Penalty units

The Legislation Act, s 133 deals with the meaning of offence penalties that are expressed in penalty units.

The main purposes of this Act are—

to establish procedures for law enforcement officers to obtain warrants or emergency authorisations for the installation, use, maintenance and retrieval of surveillance devices in criminal and corrupt conduct investigations, including investigations extending beyond the ACT; and

to recognise warrants and emergency authorisations issued in other jurisdictions; and

to restrict the use, communication and publication of information obtained through the use of surveillance devices or otherwise connected with surveillance device operations; and

to impose requirements for the secure storage and destruction of records, and the making of reports to the Legislative Assembly, in connection with surveillance device operations; and

to provide for the use of body-worn cameras by police officers in the course of their duties.

This Act (other than part 5A) does not affect any other territory law that prohibits or regulates the use of surveillance devices wholly within the ACT.

Note Territory law includes the common law (see Legislation Act, dict, pt 1, def territory law and law, of the Territory).

A function conferred in relation to the activities of the Australian Crime Commission under this Act is only conferred for the purpose of the function conferred on the Australian Crime Commission under the Australian Crime Commission (ACT) Act 2003 relating to suspected serious and organised crime as defined in that Act.

This Act does not stop a law enforcement officer from using an optical surveillance device in a place where the presence of a police officer is not an offence.

This Act does not limit a discretion that a court has—

to admit or exclude evidence in any proceeding; or

to stay criminal proceedings in the interests of justice.

To remove any doubt, a warrant may be issued, or an emergency authorisation given, in the ACT under this Act for the installation, use, maintenance or retrieval of a surveillance device in the ACT or a participating jurisdiction or both.

The following Acts do not apply in relation to activities, documents and records under this Act:

the Freedom of Information Act 2016;

the Territory Records Act 2002.

For this Act, an investigation into a relevant offence or corrupt conduct is taken to be conducted in the ACT, whether or not it is also conducted in another jurisdiction, if a law enforcement officer participates in the investigation.

Note This section is intended to cover the situation where a law enforcement officer of the ACT is conducting or participating in an investigation wholly in another jurisdiction for the purposes of an offence or corrupt conduct against a territory law (eg a law enforcement of the ACT officer is investigating a conspiracy to import drugs into the ACT from NSW and all the evidence of the offence is in NSW).

The following kinds of warrant may be issued under this part:

a surveillance device warrant;

a retrieval warrant.

A warrant may be issued in relation to 1 or more kinds of surveillance device.

A judge may issue any warrant under this part.

A magistrate may issue—

a surveillance device warrant that authorises the use of a tracking device only; or

a retrieval warrant in relation to a tracking device authorised under a warrant mentioned in paragraph (a), if a magistrate issued the original warrant.

A law enforcement officer (or another person on the officer’s behalf) may apply for the issue of a surveillance device warrant if the law enforcement officer suspects or believes on reasonable grounds that—

either—

a relevant offence has been, is being, is about to be, or is likely to be committed; or

corrupt conduct has been, is being, is about to be, or is likely to be engaged in; and

an investigation into that offence or conduct is being, will be or is likely to be conducted in the ACT, in the ACT and in 1 or more participating jurisdictions or in 1 or more participating jurisdictions; and

the use of a surveillance device in the ACT, in the ACT and in 1 or more participating jurisdictions or in 1 or more participating jurisdictions is or will be necessary in the course of that investigation for the purpose of enabling evidence or information to be obtained of the commission of the relevant offence or corrupt conduct or the identity or location of the offender.

The application may be made to—

a judge; or

for an application for a surveillance device warrant authorising the use of a tracking device only—a magistrate.

An application—

must state—

the name of the applicant; and

the nature and duration of the warrant sought, including the kind of surveillance device sought to be authorised; and

subject to this section, must be supported by an affidavit setting out the grounds on which the warrant is sought.

An application for a warrant may be made before an affidavit is prepared or sworn if a law enforcement officer believes that—

the immediate use of a surveillance device is necessary for a purpose mentioned in subsection (1) (c); and

it is impracticable for an affidavit to be prepared or sworn before an application for a warrant is made.

If subsection (4) applies, the applicant must—

give as much information as the judge or magistrate considers is reasonably practicable in the circumstances; and

not later than 72 hours after making the application, send a sworn affidavit to the judge or magistrate, whether or not a warrant has been issued.

An application for a warrant must not be heard in open court.

If a law enforcement officer believes that it is impracticable for an application for a surveillance device warrant to be made in person, the application may be made under section 11 by telephone, fax, email or any other means of communication.

If transmission by fax is available and an affidavit has been prepared, the person applying must send a copy of the affidavit, whether sworn or unsworn, to the judge or magistrate who is to decide the application.

A judge or magistrate may issue a surveillance device warrant if satisfied that—

there are reasonable grounds for the suspicion or belief founding the application for the warrant; and

for an unsworn application—it would have been impracticable for an affidavit to have been prepared or sworn before the application was made; and

for a remote application—it would have been impracticable for the application to have been made in person.

In deciding whether a surveillance device warrant should be issued, the judge or magistrate must have regard to the following:

the nature and gravity of the alleged offence or corrupt conduct in relation to which the warrant is sought;

the extent to which the privacy of any person is likely to be affected;

the existence of any alternative means of obtaining the evidence or information sought to be obtained and the extent to which those means may assist or prejudice the investigation;

the evidentiary or intelligence value of any information sought to be obtained;

any previous warrant sought or issued under this division or a corresponding law (if known) in connection with the same offence or corrupt conduct.