Police Powers (Surveillance Devices) Act 2006

Police Powers (Surveillance Devices) Act 2006

This Act may be cited as the Police Powers (Surveillance Devices) Act 2006.

This Act commences on a day to be proclaimed.

In this Act, unless the contrary intention appears – applicant, for a warrant, means the law enforcement 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 of the Commonwealth; business day means a day other than a Saturday, a Sunday or a statutory holiday under the Statutory Holidays Act 2000; chief officer means the person for the time being holding office as – in relation to the Police Service, the Commissioner of Police; or in relation to the Australian Crime Commission, the Chief Executive Officer of the Australian Crime Commission; computer means any electronic device for storing or processing information; corresponding emergency authorisation means an authorisation given under the provisions of a corresponding law that correspond to Part 3; corresponding law means a law of another jurisdiction that corresponds to this Act, and includes a law of another jurisdiction that is declared by the regulations to correspond to this Act; corresponding warrant means a warrant issued under the provisions of a corresponding law that correspond to Part 2; data surveillance device means any device or program capable of being used to record or monitor the input of information into or the output of information from a computer, but does not include an optical surveillance device; device includes instrument, apparatus and equipment; disciplinary proceeding means a proceeding of a disciplinary nature under a law of any jurisdiction or of the Commonwealth; emergency authorisation means an emergency authorisation given under Part 3; 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 surveillance device; install includes attach; jurisdiction means a State or Territory of the Commonwealth; law enforcement agency means – the Police Service; or the Australian Crime Commission; law enforcement officer means – in relation to the Police Service, a police officer; and in relation to the Australian Crime Commission, a member of staff of the Australian Crime Commission – and includes a person who is seconded to a law enforcement agency, including (but not limited to) a member of the police force or police service, and a police officer (however described), of another jurisdiction; listening device means any device capable of being used to overhear, record, monitor or listen to a conversation or words spoken to or by any person in conversation, but does not include a hearing aid or similar device used by a person with impaired hearing to overcome the impairment and permit that person to hear only sounds ordinarily audible to the human ear; maintain, in relation to a surveillance device, includes – adjust, relocate, repair or service the device; and replace a faulty device; optical surveillance device means any device capable of being used to 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 that impairment; participating jurisdiction means a jurisdiction in which a corresponding law is in force; personal camera means – a device that is capable of recording visual images or sound, or both, and that is usually used by being held in a person's hand, whether or not the device is being held when the recording takes place; and a device that is capable of recording visual images or sound, or both, and that is usually worn on the body, whether or not the device is being worn when the recording takes place; premises includes – land and a structure, building, caravan, vehicle or vessel, whether temporary or not and whether under construction or not; and a place, whether enclosed or built on or not and whether on, within, over or under land or water; and a part of premises, including premises referred to in paragraph (a) or (b); private conversation has the same meaning as in the Listening Devices Act 1991; protected information has the meaning given in section 32; 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; record includes – an audio, visual or audio-visual record; and a record in digital form; and a documentary record prepared from a record referred to in paragraph (a) or (b); relevant offence means – an offence against the law of this jurisdiction punishable by a maximum term of imprisonment of 3 years or more; or an offence against the law of this jurisdiction that is prescribed by the regulations; relevant proceeding means – the prosecution of a relevant offence; or a bail application, or a review of a decision to grant or refuse a bail application, in relation to a relevant offence; or a proceeding with a view to the committal of a person to stand for trial for a relevant offence; or an application for the exercise of a power in relation to a relevant offence – to a court or judicial officer; or by a law enforcement officer to anyone under this Act; or a proceeding for the confiscation, forfeiture or restraint of property or for the imposition of a pecuniary penalty in connection with a relevant offence; or a proceeding for the protection of a child or a person with a disability within the meaning of the Guardianship and Administration Act 1995; 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 that is the subject of the inquest or inquiry may have resulted from the commission of a relevant offence; or a proceeding under section 13 of the Mutual Assistance in Criminal Matters Act 1987 of the Commonwealth in relation to a criminal matter that concerns an offence against the laws of the foreign country that made the request resulting in the proceeding, being an offence punishable by a maximum term of imprisonment of 3 years or more; or a proceeding for the taking of evidence under section 43 of the Extradition Act 1988 of the Commonwealth, in so far as the proceeding relates to a relevant offence; or a proceeding for the extradition of a person from another jurisdiction to this jurisdiction, in so far as the proceeding relates to a relevant offence; or a proceeding under Division 1 of Part 4 of the International War Crimes Tribunals Act 1995 of the Commonwealth; or a proceeding of the International Criminal Court; remote application, for a warrant, means an application referred to in section 10 or 18; 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 Division 3 of Part 2; senior officer means a person for the time being holding office as – in relation to the Police Service, a police officer of or above the rank of inspector; or in relation to the Australian Crime Commission, the Chief Executive Officer of the Australian Crime Commission or an examiner within the meaning of the Australian Crime Commission Act 2002 of the Commonwealth; surveillance device means – a data surveillance device, a listening device, an optical surveillance device or a tracking device; or a device that is a combination of any 2 or more of the devices referred to in paragraph (a); or a device of a kind prescribed by the regulations; surveillance device warrant means a warrant issued under Division 2 of Part 2 or under section 27(3); this jurisdiction means Tasmania; tracking device means any electronic device capable of being used to determine or monitor the geographical location of a person or an object; unsworn application, for a warrant, means an application referred to in section 9(4) or section 17(4); use, of a surveillance device, includes use of the device to monitor or record a conversation or other activity; vehicle includes aircraft and vessel; warrant means surveillance device warrant or retrieval warrant.

For the purposes of this Act, an investigation into a relevant 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.

A note included in this Act does not form part of the Act.

A person is "reckless" in relation to a circumstance if – the person is aware of a substantial risk that the circumstance exists or will exist; and having regard to the circumstances known to the person, it is unjustifiable to take the risk.

A person is "reckless" in relation to a result if – the person is aware of a substantial risk that the result will happen; and having regard to the circumstances known to the person, it is unjustifiable to take the risk.

It is a question of fact as to whether taking a risk is unjustifiable.

This Act is not intended to affect any other law of this jurisdiction that prohibits or regulates the use of surveillance devices wholly within this jurisdiction.

This Act is not intended to limit a discretion that a court has – to admit or exclude evidence in any proceedings; 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 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.

A function conferred under this Act in relation to the activities of the Australian Crime Commission is only conferred for the purpose of the function conferred on the Australian Crime Commission under the Australian Crime Commission (Tasmania) Act 2004 relating to suspected serious and organised crime as defined under 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.

The following Acts do not apply to activities and records under this Act:the Archives Act 1983; the Right to Information Act 2009; the Personal Information Protection Act 2004.

This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities.

Nothing in this Act makes the Crown liable to be prosecuted for an offence.

The following types of warrant may be issued under this Part:a surveillance device warrant; a retrieval warrant.

A warrant may be issued in respect of one or more kinds of surveillance device.

Nothing in this Act is to be taken to require the use of a personal camera, in accordance with section 44A, by a police officer to be authorised under a warrant under this Act.

The Supreme Court may issue any warrant under this Part.

A magistrate may issue – a surveillance device warrant, other than a warrant that authorises the use of a surveillance device outside Tasmania; or a retrieval warrant in respect of a surveillance device authorised under a warrant referred to in paragraph (a).

A law enforcement officer (or another person on his or her behalf) may apply for the issue of a surveillance device warrant if the law enforcement officer on reasonable grounds suspects or believes that – a relevant offence has been, is being, is about to be or is likely to be committed; and an investigation into that offence is being, will be or is likely to be conducted in this jurisdiction, in this and one or more participating jurisdictions or in one or more participating jurisdictions; and the use of a surveillance device in this jurisdiction, in this and one or more participating jurisdictions or in one 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 the identity or location of the offender.

The application may be made to – the Supreme Court in any case; or a magistrate in the case of an application for a surveillance device warrant that authorises the use, only in this jurisdiction, of a device for the purpose of investigating a relevant offence.

An application – must specify – 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 and the prescribed information (if any).

If a law enforcement officer believes that – the immediate use of a surveillance device is necessary for a purpose referred to in subsection (1)(c); and it is impracticable for an affidavit to be prepared or sworn before an application for a warrant is made – an application for a warrant may be made before an affidavit is prepared or sworn.

If subsection (4) applies, the applicant must – provide as much information as the Supreme Court or magistrate considers is reasonably practicable in the circumstances; and not later than 72 hours following the making of the application, send a duly sworn affidavit to the Supreme Court or magistrate, whether or not a warrant has been issued.

The Supreme Court or a magistrate must hear an application for a warrant in the absence of anyone other than the following:the applicant; someone the judge or magistrate permits to be present; an Australian legal practitioner representing anyone mentioned in paragraphs (a) and (b).

Also the Supreme Court or magistrate must hear the application – in the absence of the person proposed to be placed under surveillance (the "relevant person") or anyone likely to inform the relevant person of the application; and without the relevant person having been informed of the application.

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 9 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 transmit a copy of the affidavit, whether sworn or unsworn, to the Supreme Court or magistrate who is to determine the application.

The Supreme Court or a 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 in the case of an unsworn application, that it would have been impracticable for an affidavit to have been prepared or sworn before the application was made; and in the case of a remote application, that it would have been impracticable for the application to have been made in person.

In determining whether a surveillance device warrant should be issued, the judge or magistrate must have regard to – the nature and seriousness of the alleged offence in respect of which the warrant is sought; and the extent to which the privacy of any person is likely to be affected; and 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; and the evidentiary or intelligence value of any information sought to be obtained; and any previous warrant sought or issued under this Division, a corresponding law (if known) or the Listening Devices Act 1991 in connection with the same offence.