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:

(a) to regulate the installation, use, maintenance and retrieval of surveillance devices; and

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

(c) 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

(d) to recognise warrants and emergency authorisations issued in other jurisdictions; and

(e) 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.

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.

(1) 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.

(2) 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.

(3) 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.

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

Commission; or

(b) the

Director General or an officer or employee of the Australian Security

Intelligence Organisation; or

(c) 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

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

or

(e) the

Minister administering the Migration Act 1958 (Cth) or the

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

(1) 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 a criminal proceeding in the interests of justice.

(2) 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.

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

(1) A person is guilty of an offence if the person:

(a) 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

(b) 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.

(2) Subsection (1) does not apply to:

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

(i) a warrant, emergency authorisation, corresponding warrant or corresponding emergency authorisation; or

(ii) under a law of the Commonwealth; or

(b) 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:

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

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

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

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

(c) the use of a listening device under section 43.

(1) A person is guilty of an offence if the person:

(a) 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

(b) 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.

(2) Subsection (1) does not apply to the installation, use or maintenance of an optical surveillance device:

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

(b) under a law of the Commonwealth; or

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

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

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

(d) 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:

(i) entry on a place;

(ii) interference with a vehicle or other thing; or

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

(e) the use of an optical surveillance device under section 44.

(1) A person is guilty of an offence if the person:

(a) installs, uses or maintains a tracking device to determine the geographical location of a person or thing; and

(b) knows the device is installed, used or maintained without the express or implied consent of:

(i) for a device to determine the location of a person – the person; or

(ii) for a device to determine the location of a thing – a person in lawful possession or having lawful control of the thing.

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

(2) Subsection (1) does not apply to the installation, use or maintenance of a tracking device:

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

(b) under a law of the Commonwealth; or

(c) if the device is installed by a law enforcement officer or an ICAC officer in the performance of the officer's duty on a thing when the thing is in a public place; or

(d) if the device is installed, used or maintained in prescribed circumstances.