Surveillance Devices Act 2004

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

to establish procedures for law enforcement officers to obtain warrants and emergency authorisations that:

are for access to data held in computers; and

relate to criminal investigations and the location and safe recovery of children to whom recovery orders relate; and

to establish procedures for certain law enforcement officers of the Australian Federal Police to obtain warrants and emergency authorisations that:

authorise the disruption of data held in computers; and

are likely to substantially assist in frustrating the commission of relevant offences; and

to establish procedures for the chief officer of the Australian Federal Police or the Australian Crime Commission to obtain warrants that:

authorise access to data held in computers; and

will substantially assist in the collection of intelligence that relates to criminal networks of individuals; and

to establish procedures for law enforcement officers to obtain warrants for the installation and use of surveillance devices, or for access to data held in computers, in cases where the use of the device or the access to the data would be likely to assist in determining whether to apply for a post‑sentence order; and

to establish procedures for law enforcement officers to obtain warrants for the installation and use of surveillance devices, or for access to data held in computers, in cases where a Part 5.3 supervisory order is in force, and the use of the device or the access to the data would be likely to substantially assist in:

achieving a Part 5.3 object; or

determining whether the Part 5.3 supervisory order, or any succeeding Part 5.3 supervisory order, has been, or is being, complied with; and

to establish procedures for law enforcement officers to obtain tracking device authorisations for the use of tracking devices in cases where a Part 5.3 supervisory order is in force in relation to a person, and the use of a tracking device is to obtain information relating to the person for either of the following purposes:

achieving a Part 5.3 object;

determining whether the Part 5.3 supervisory order, or any succeeding Part 5.3 supervisory order, has been, or is being, complied with; and

to establish procedures for law enforcement officers to obtain warrants for the installation and use of surveillance devices, or for access to data held in computers, in cases where a community safety supervision order is in force, and the use of the device or the access to the data would be likely to substantially assist in:

achieving a Part 9.10 object; or

determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with; and

to establish procedures for law enforcement officers to obtain tracking device authorisations for the use of tracking devices in cases where a community safety supervision order is in force in relation to a person, and the use of a tracking device is to obtain information relating to the person for either of the following purposes:

achieving a Part 9.10 object;

determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with; and

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

to restrict the use, communication and publication of information that is obtained through accessing or disrupting data held in computers or that is otherwise connected with computer data access operations or computer data disruption operations; and

to impose requirements for the secure storage and destruction of records, and the making of reports, in connection with surveillance device operations, computer data access operations and computer data disruption operations.

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; or

prohibits or regulates access to data held in computers; or

prohibits or regulates disruption of data held in computers.

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.

This Act is not intended to 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.

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.

For the avoidance of doubt, it is intended that a warrant may be issued, or an emergency authorisation given, under this Act:

for access to data held in a computer; and

in relation to a relevant offence or a recovery order.

For the avoidance of doubt, it is intended that a warrant may be issued, or an emergency authorisation given, under this Act:

for access to, and disruption of, data held in a computer; and

in relation to one or more relevant offences.

For the avoidance of doubt, it is intended that a warrant may be issued under this Act:

for access to data held in a computer; and

in relation to the collection of intelligence that relates to a criminal network of individuals.

To avoid doubt, it is intended that a warrant may be issued under this Act for the installation, use, maintenance or retrieval of a surveillance device, or for access to data held in a computer, if:

consideration is being given, will be given, or is likely to be given, as to whether to apply for a post‑sentence order, and the use of the device or the access to the data would be likely to assist in determining whether to apply for the order; or

a Part 5.3 supervisory order is in force, and the use of the device or the access to the data would be likely to substantially assist in:

achieving a Part 5.3 object; or

determining whether the Part 5.3 supervisory order, or any succeeding Part 5.3 supervisory order, has been, or is being, complied with.

To avoid doubt, a tracking device authorisation may be given under this Act for the use of a tracking device to obtain information relating to a person if:

a Part 5.3 supervisory order is in force in relation to the person; and

the use is for either of the following purposes:

achieving a Part 5.3 object;

determining whether the Part 5.3 supervisory order, or any succeeding Part 5.3 supervisory order, has been, or is being, complied with.

To avoid doubt, it is intended that a warrant may be issued under this Act for the installation, use, maintenance or retrieval of a surveillance device, or for access to data held in a computer, if:

consideration is being given, will be given, or is likely to be given, as to whether to apply for a Part 9.10 order, and the use of the device or the access to the data would be likely to assist in determining whether to apply for the order; or

a community safety supervision order is in force, and the use of the device or the access to the data would be likely to substantially assist in:

achieving a Part 9.10 object; or

determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with.

To avoid doubt, a tracking device authorisation may be given under this Act for the use of a tracking device to obtain information relating to a person if:

a community safety supervision order is in force in relation to the person; and

the use is for either of the following purposes:

achieving a Part 9.10 object;

determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with.

A body or officer mentioned in an item of column 1 of the table in subsection (6) or (7) is a law enforcement agency.

The chief officer, of the law enforcement agency, is the person mentioned in column 2 of the item.

A law enforcement officer, in relation to the law enforcement agency, is a person mentioned in column 3 of the item.

An appropriate authorising officer, of the law enforcement agency, is a person mentioned in column 4 of the item.

The chief officer of the law enforcement agency may authorise, in writing, a person to be an appropriate authorising officer of the agency if column 4 of the item so provides.

This table deals with federal law enforcement agencies:

This table deals with State and Territory law enforcement agencies:

A person is executive level, in relation to a law enforcement agency of a State, if the person occupies an office or position at an equivalent level to that of:

if the State is New South Wales—a Public Service senior executive (within the meaning of the Government Sector Employment Act 2013 (NSW)); or

if the State is Victoria—an executive (within the meaning of the Public Administration Act 2004 (Vic.)); or

if the State is South Australia—an executive employee (within the meaning of the Public Sector Act 2009 (SA)).

the order is a control order that has been made but has not yet come into force because:

it has not been served on the person; or

the person is detained in custody in a prison; or

the order is an extended supervision order or an interim supervision order that has been made but the period specified in the order under paragraph 105A.7A(4)(d) or 105A.9A(7)(c) of the Criminal Code has not yet begun.

If 2 or more successive control orders are made in relation to the same person, each later control order is a succeeding Part 5.3 supervisory order in relation to each earlier control order.

If an interim control order is confirmed, the confirmed control order is a succeeding Part 5.3 supervisory order in relation to the interim control order (see the definition of control order in section 6).

If an interim supervision order is made in relation to a person, any later extended supervision order in relation to the person is a succeeding Part 5.3 supervisory order in relation to an earlier interim supervision order.

If 2 or more successive extended supervision orders or interim supervision orders are made in relation to the same person, each later extended supervision order or interim supervision order is a succeeding Part 5.3 supervisory order in relation to each earlier extended supervision order or interim supervision order.

If a community safety supervision order is made in relation to a person, any later community safety supervision order in relation to the person is a succeeding community safety supervision order in relation to an earlier community safety supervision order.

If 2 or more successive community safety supervision orders are made in relation to the same person, each later community safety supervision order is a succeeding community safety supervision order in relation to each earlier community safety supervision order.

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

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

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.