Surveillance Devices Act 2007

This

Act may be cited as the Surveillance Devices Act 2007.

This

Act commences on the date fixed by the Administrator by Gazette notice.

The purposes of this Act are:

to regulate the installation, use, maintenance and retrieval of surveillance devices; 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 establish procedures for law enforcement officers and ICAC officers to obtain warrants or emergency authorisations for the installation, use, maintenance and retrieval of surveillance devices in criminal investigations extending beyond this jurisdiction; and

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

to impose requirements for the secure storage and destruction of records, and the making of reports to Supreme Court Judges, Local

Court Judges and Parliament, in relation to surveillance device operations.

Division 2 Interpretation

In this Act:

applicant, for a warrant, means the law enforcement officer or ICAC officer who applies, or on whose behalf an application is made, for the warrant.

Australian

Crime Commission means the Australian Crime Commission established by the Australian Crime Commission Act 2002 (Cth).

authorised person means a person holding an appointment under section 74.

body-worn video means equipment worn on the person of a police officer that is capable of recording visual images or sound or both.

business day means a day other than a Saturday, Sunday or public holiday.

chief officer means:

for the Territory Police Force – the Commissioner of Police; or

for the Australian Crime Commission – the Chief Executive Officer of the Australian Crime Commission.

Commonwealth

Ombudsman means the person occupying or holding office as the

Commonwealth Ombudsman under the Ombudsman Act 1976 (Cth).

computer means any electronic device for storing or processing information.

connection device means a device that is not a surveillance device or

part of a surveillance device but is ancillary to the installation, use, maintenance or retrieval of a surveillance device.

corresponding emergency authorisation means an authorisation in the nature of an emergency authorisation given under a corresponding law for a relevant offence under the law.

corresponding law means a law of another jurisdiction that:

provides for the authorisation of the use of surveillance devices; and

is declared by regulation to be a corresponding law.

corresponding protected information, see section 51(3).

corresponding warrant means a warrant in the nature of a surveillance device warrant or retrieval warrant issued under a corresponding law for a relevant offence under the law.

data surveillance device means a device capable of being used to monitor or record the information being put on to or retrieved from a computer, but does not include an optical surveillance device.

device includes apparatus, equipment, instrument and machine.

emergency authorisation means an emergency authorisation given under section 35.

emergency authorisation (serious drugs offence) means an emergency authorisation given on an application made under section 33(2).

emergency authorisation (serious violence) means an emergency authorisation given on an application made under section 33(1).

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 device.

ICAC

Act means the Independent Commissioner Against Corruption

Act 2017.

ICAC officer means:

the

ICAC; or

a member of ICAC staff.

improper conduct, see section 9 of the ICAC Act.

Inspector, see section 3 of the Integrity and Ethics Commissioner

Act 2025.

install includes attach.

jurisdiction means a State or another Territory of the Commonwealth.

law enforcement agency means the following agencies:

the

Territory Police Force;

the

Australian Crime Commission.

law enforcement officer means:

for the Territory Police Force:

a police officer; or

a person who is seconded to the Police Force, including, for example, a member of the police force or police service or a police officer (however described) of another jurisdiction; or

for the Australian Crime Commission:

a member of staff of the Australian Crime Commission; or

a person who is seconded to the Commission, including, for example, a member of the police force or police service or a police officer (however described) of another jurisdiction.

listening device means a device capable of being used to listen to, monitor or record a conversation or words spoken to or by a person in a conversation, but does not include a hearing aid or similar device used by a person with impaired hearing to overcome the impairment and permit the person to hear only sounds ordinarily audible to the human ear.

listen to includes hear.

local protected information, see section 51(2).

maintain, in relation to a surveillance device, includes:

adjust, relocate, repair or service the device; and

if the device is faulty, replace it.

member of ICAC staff, see section 4 of the ICAC Act.

offence means an offence against the law of the Territory, the Commonwealth or another jurisdiction.

on, a place or thing, includes at and in the place or thing.

optical surveillance device means a device capable of being used to monitor, 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 the impairment and permit the person to see only sights ordinarily visible to the human eye.

participating jurisdiction means a jurisdiction in which a corresponding law is in force.

party means:

for a private conversation – a person by or to whom words are spoken in the course of the conversation; or

for a private activity – a person who takes part in the activity.

place includes vacant land, premises and a vehicle.

possess, for a surveillance device, includes having the source under control in any place, whether or not another person has the custody of the device.

premises includes the following, regardless of whether in or outside this jurisdiction:

a building or structure;

a

part of a building or structure;

land on which a building or structure is situated.

private activity means an activity carried on in circumstances that may reasonably be taken to indicate the parties to the activity desire it to be observed only by themselves, but does not include an activity carried on in circumstances in which the parties to the activity ought reasonably to expect the activity may be observed by someone else.

private conversation means a conversation carried on in circumstances that may reasonably be taken to indicate the parties to the conversation desire it to be listened to only by themselves, but does not include a conversation carried on in circumstances in which the parties to the conversation ought reasonably to expect the conversation may be overheard by someone else.

protected information, see section 51(1).

public officer means a person employed by, or holding an office established by or under a law of, this jurisdiction or a person employed by a public authority of this jurisdiction, and includes a law enforcement officer and an ICAC officer.

reasonably believes means believes on grounds that are reasonable in the circumstances.

record includes:

an audio, visual or audio visual record; and

a record in digital form; and

a documentary record prepared from a record mentioned in paragraph (a) or (b).

relevant offence means:

an offence against a law of this jurisdiction punishable by imprisonment for a term of 3 years or more or for life; or

an offence against a law of this jurisdiction prescribed by regulation.

relevant proceeding means:

the prosecution of an offence; or

a bail application or review of a decision to grant or refuse a bail application; or

a proceeding for the committal of a person to stand trial for an offence; or

a proceeding for the confiscation, forfeiture or restraint of property or for the imposition of a pecuniary penalty in relation to an offence, or a proceeding related or ancillary to such a proceeding;

or

a proceeding for the protection of a child or intellectually impaired person; or

a proceeding concerning the validity of a warrant, emergency authorisation, corresponding warrant or corresponding emergency authorisation; or

a disciplinary proceeding against a public officer; or

a coronial inquest or inquiry if, in the opinion of the coroner, the event the subject of the inquest or inquiry may have resulted from the commission of an offence; or

a proceeding under section 13 of the Mutual Assistance in Criminal

Matters Act 1987 (Cth) in relation to a criminal matter concerning an offence against the laws of the foreign country making the request resulting in the proceeding; or

a proceeding for the taking of evidence under section 43 of the

Extradition Act 1988 (Cth); or

a proceeding for the extradition of a person from another jurisdiction to this jurisdiction; or

a proceeding under Part 4, Division 1, of the International War

Crimes Tribunals Act 1995 (Cth); or

a proceeding of the International Criminal Court; or

an examination as defined in section 4 of the ICAC Act; or

a public inquiry as defined in section 4 of the ICAC Act.

remote application for a warrant, means an application mentioned in section 20 or 28.

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 Part 4, Division 3.

senior officer means:

for the Territory Police Force:

the

Commissioner of Police; or

a

Deputy Commissioner of Police; or

an

Assistant Commissioner of Police; or

for the Australian Crime Commission – the Chief Executive Officer or an examiner as defined in the Australian Crime Commission Act 2002 (Cth); or

for the Independent Commissioner Against Corruption:

the

ICAC; or

a person to whom the ICAC's powers or functions under section 95A of the Police (Special Investigative and Other Powers) Act 2015

are delegated.

serious drug offence means an offence involving the possession, use, manufacture, production or supply of a dangerous drug as defined in section 3(1) of the Misuse of Drugs Act 1990.

surveillance device means:

a data surveillance device, listening device, optical surveillance device or tracking device; or

a device that is a combination of any 2 or more of the devices mentioned in paragraph (a); or

a device of a kind prescribed by regulation.

surveillance device warrant means a warrant issued under Part 4, Division

2.

this jurisdiction means the Territory.

tracking device means an electronic device that may be used to determine the geographical location of a person or thing.

use, of a surveillance device, includes use of the device to record a conversation or other activity.

vehicle means anything used for carrying any person or anything by land, water or air.

warrant means surveillance device warrant or retrieval warrant.

Note for section 4

The

Interpretation Act 1978 contains definitions and other provisions that may be relevant to this Act.

In this Act, a reference to the law enforcement officer or ICAC officer primarily responsible for executing a warrant is a reference to the officer named in the warrant as such, whether or not the officer is physically present for any step in the execution of the warrant.

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

For this Act, an investigation (as defined in section 4 of the ICAC Act) into improper conduct is taken to be conducted in this jurisdiction (whether or not it is also conducted in another jurisdiction) if an

ICAC officer participates in the investigation.

In subsection (2):

investigation, see section 4 of the ICAC Act.

Part

IIAA of the Criminal Code applies to an offence against this Act.

Note for section 7

Part

IIAA of the Criminal Code states the general principles of criminal responsibility, establishes general defences, and deals with burden of proof. It also defines, or elaborates on, certain concepts commonly used in the creation of offences.

Division 3 Application of Act

This

Act binds the Crown in right of the Territory and, to the extent the legislative power of the Legislative Assembly permits, the Crown in all its other capacities.

This

Act does not apply to anything done in the course of duty by:

a member or member of staff of the Australian Competition and Consumer

Commission; or

the

Director General or an officer or employee of the Australian Security

Intelligence Organisation; or

a member of the Australian Federal Police, other than in the member's capacity as a member of staff of the Australian Crime Commission; or

an officer of customs as defined in the Customs Act 1901 (Cth);

or

the

Minister administering the Migration Act 1958 (Cth) or the

Secretary or an officer or employee of the Department as defined in that Act.

This

Act is not intended to limit a discretion that a court has:

to admit or exclude evidence in any proceeding; or

to stay a criminal proceeding in the interests of justice.

To avoid doubt, it is intended that a warrant may be issued, or an emergency authorisation given, in this jurisdiction under this Act for the installation, use, maintenance or retrieval of a surveillance device in this jurisdiction or a participating jurisdiction or both.

Subsection

is subject to sections 23(8) and 36(2).

Part

2 Regulation of installation, use and maintenance of surveillance devices

A person is guilty of an offence if the person:

installs, uses or maintains a listening device to listen to, monitor or record a private conversation to which the person is not a party; and

knows the device is installed, used or maintained without the express or implied consent of each party to the conversation.

Maximum penalty: 250 penalty units or imprisonment for 2 years.

Subsection

does not apply to:

the installation, use or maintenance of a listening device under:

a warrant, emergency authorisation, corresponding warrant or corresponding emergency authorisation; or

under a law of the Commonwealth; or

the use of a listening device by a law enforcement officer or an ICAC officer to monitor or record a private conversation to which the officer is not a party if:

at least 1 party to the conversation expressly or impliedly consents to the monitoring or recording; and

the officer is acting in the performance of the officer's duty; and

the officer reasonably believes it is necessary to monitor or record the conversation for the protection of someone's safety; or

the use, in accordance with section 14A, of body-worn video by a police officer; or

the use of a listening device under section 43.

A person is guilty of an offence if the person:

installs, uses or maintains an optical surveillance device to monitor, record visually or observe a private activity to which the person is not a party; and

knows the device is installed, used or maintained without the express or implied consent of each party to the activity.

Maximum penalty: 250 penalty units or imprisonment for 2 years.

Subsection

does not apply to the installation, use or maintenance of an optical surveillance device:

under a warrant, emergency authorisation, corresponding warrant or corresponding emergency authorisation; or

under a law of the Commonwealth; or

by a law enforcement officer or an ICAC officer in the performance of the officer's duty on a place if:

an occupier of the place authorises the installation, use or maintenance; and

the installation, use or maintenance is reasonably necessary for the protection of someone's lawful interests; or

the use of an optical surveillance device by a law enforcement officer or an ICAC officer in the performance of the officer's duty if it does not involve the following without permission:

entry on a place;

interference with a vehicle or other thing; or

the use, in accordance with section 14A, of body-worn video by a police officer; or

the use of an optical surveillance device under section 44.