New South Wales: Surveillance Devices Act 2007 (NSW)

Surveillance Devices Act 2007 No 64 An Act to regulate the installation, use, maintenance and retrieval of surveillance devices; to repeal the Listening Devices Act 1984; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Surveillance Devices Act 2007. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 2A Objects of Act The objects of this Act are— (a) to provide law enforcement agencies with a comprehensive framework for the use of surveillance devices in criminal investigations, and (b) to enable law enforcement agencies to covertly gather evidence for the purposes of criminal prosecutions, and (c) to ensure that the privacy of individuals is not unnecessarily impinged upon by providing strict requirements around the installation, use and maintenance of surveillance devices. 3 Relationship to other laws and matters (1) Except where there is express provision to the contrary, this Act is not intended to affect any other law of the State that prohibits or regulates the use of surveillance devices. Note. For example, the Workplace Surveillance Act 2005 contains certain requirements in relation to camera surveillance. The applicable requirements of both that Act and this Act will need to be complied with if camera surveillance is carried out. (2) This Act is not intended to limit a discretion a court has— (a) to admit or exclude evidence in any proceeding, or (b) to stay criminal proceedings in the interests of justice. (3) 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. 4 Definitions (1) In this Act— 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. body-worn video means equipment worn on the person of a police officer that is capable of recording visual images or sound or both. building includes any structure. business day means a day other than a Saturday, Sunday, public holiday or bank holiday in New South Wales. chief officer means the following— (a) in relation to the NSW Police Force—the Commissioner of Police, (b) in relation to the Australian Crime Commission—the Chief Executive Officer of the Australian Crime Commission, (c) in relation to the New South Wales Crime Commission—the Commissioner for the New South Wales Crime Commission, (d) in relation to the Independent Commission Against Corruption—the Chief Commissioner of the Independent Commission Against Corruption, (e) in relation to the Law Enforcement Conduct Commission—the Chief Commissioner of that Commission, or (f) any other person prescribed by the regulations as the chief officer in relation to a law enforcement agency. computer means any electronic device for storing, processing or transferring information. correctional centre and inmate of a correctional centre have the same meanings as in the Crimes (Administration of Sentences) Act 1999. corresponding emergency authorisation means an authorisation in the nature of an emergency authorisation given under the provisions of a corresponding law, being an authorisation in relation to a relevant offence within the meaning of the corresponding law. corresponding law means a law of another jurisdiction that— (a) provides for the authorisation of the use of surveillance devices, and (b) is declared by the regulations to be a corresponding law. corresponding warrant means a warrant in the nature of a surveillance device warrant or retrieval warrant issued under the provisions of a corresponding law, being a warrant in relation to a relevant offence within the meaning of that corresponding law. data surveillance device means any device or program capable of being used to record or monitor the input of information into or 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. eligible Judge is defined in section 5. eligible Magistrate is defined in section 5. emergency authorisation means an emergency authorisation given under Division 4 of Part 3. enhancement equipment, in relation to a surveillance device, means equipment capable of enhancing a signal, image or other information obtained by use of the surveillance device. exercise a function includes perform a duty. function includes a power, authority or duty. Inspector means the Inspector of the Law Enforcement Conduct Commission. install includes attach. jurisdiction means a State or Territory of the Commonwealth. law enforcement agency means the following agencies— (a) the NSW Police Force, (b) the New South Wales Crime Commission, (c) the Independent Commission Against Corruption, (d) the Law Enforcement Conduct Commission, (e) any other agency prescribed by the regulations for the purposes of this definition. law enforcement officer means the following— (a) in relation to the NSW Police Force—a member of the NSW Police Force, (b) in relation to the New South Wales Crime Commission—an officer of the Commission within the meaning of the Crime Commission Act 2012, (c) in relation to the Independent Commission Against Corruption—an officer of the Commission within the meaning of the Independent Commission Against Corruption Act 1988, (d) in relation to the Law Enforcement Conduct Commission—an officer of the Commission within the meaning of the Law Enforcement Conduct Commission Act 2016, (e) in relation to an agency prescribed for the purposes of paragraph (e) of the definition of law enforcement agency—any person prescribed by the regulations as a law enforcement officer in respect of that agency for the purposes of this definition, 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 or 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— (a) adjust, relocate, repair or service the device, and (b) 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. party— (a) to an activity—means a person who takes part in the activity, and (b) to a private conversation—means a person by or to whom words are spoken in the due course of the conversation or a person who, with the consent, express or implied, of any of the persons by or to whom words are spoken in the course of the conversation, records, monitors or listens to those words. premises includes the following— (a) land, (b) a building, (c) a part of a building, (d) any place, whether built on or not, whether in or outside this jurisdiction. principal party, in relation to a private conversation, means a person by or to whom words are spoken in the course of the conversation. private conversation means any words spoken by one person to another person or to other persons in circumstances that may reasonably be taken to indicate that any of those persons desires the words to be listened to only— (a) by themselves, or (b) by themselves and by some other person who has the consent, express or implied, of all of those persons to do so, but does not include a conversation made in any circumstances in which the parties to it ought reasonably to expect that it might be overheard by someone else. protected information has the meaning given to it by section 39. 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 the following— (a) an audio, visual or audio visual record, (b) a record in digital form, (c) a documentary record prepared from a record referred to in paragraph (a) or (b). relevant offence means— (a) an offence against a law of this jurisdiction or of the Commonwealth or another State or Territory that may be prosecuted on indictment, or (b) an offence against the law of this jurisdiction that is prescribed by the regulations for the purposes of this definition. relevant proceeding means the following— (a) the prosecution of a relevant offence, (b) a proceeding for the confiscation, forfeiture or restraint of property or for the imposition of a pecuniary penalty in connection with a relevant offence, (c) a proceeding for the protection of a child or intellectually impaired person, (d) a proceeding concerning the validity of a warrant, emergency authorisation, corresponding warrant or corresponding emergency authorisation, (e) a disciplinary proceeding against a public officer, (f) 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, (g) 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 that may be prosecuted on indictment, (h) 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, (i) 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, (j) a proceeding under Division 1 of Part 4 of the International War Crimes Tribunals Act 1995 of the Commonwealth, (k) a proceeding of the International Criminal Court, (l) a compulsory examination or public inquiry before the Independent Commission Against Corruption or an inquiry before the Inspector of the Independent Commission Against Corruption, (m) a public or private examination before an examining Commissioner (within the meaning of the Law Enforcement Conduct Commission Act 2016) or an inquiry before the Inspector of the Law Enforcement Conduct Commission, (n) a hearing before the New South Wales Crime Commission, (o) an examination before the Australian Crime Commission, (p) any proceeding in respect of a declaration under Part 2, or a control order under Division 1 or 2 of Part 3, of the Crimes (Criminal Organisations Control) Act 2012, (q) a proceeding for the parole of a person to whom Division 5 of Part 4C of the Children (Detention Centres) Act 1987 applies, (r) a proceeding under the Terrorism (High Risk Offenders) Act 2017, (s) a proceeding before the State Parole Authority under Part 6 or 7 of the Crimes (Administration of Sentences) Act 1999, (t) an application under the Crimes (Serious Crime Prevention Orders) Act 2016 to an appropriate court within the meaning of that Act, or an appeal under section 11 of that Act, (u) an application under Part 5 of the Crimes (Forensic Procedures) Act 2000, (v) a proceeding before the Civil and Administrative Tribunal in respect of an application for administrative review under section 75(1)(a) or (f) of the Firearms Act 1996. remote application for a warrant means an application referred to in section 18 or 26. 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 3. senior officer means the following— (a) in relation to the NSW Police Force— (i) the Commissioner of Police, or (ii) any Deputy Commissioner of Police, or (iii) any Assistant Commissioner of Police, or (iv) any Superintendent of Police, (b) in relation to the New South Wales Crime Commission—the Commissioner for the New South Wales Crime Commission, (c) in relation to the Independent Commission Against Corruption—the Chief Commissioner or any other Commissioner of the Independent Commission Against Corruption, (d) in relation to the Law Enforcement Conduct Commission—the Chief Commissioner of the Law Enforcement Conduct Commission, (e) in relation to any other agency prescribed by the regulations for the purposes of the definition of law enforcement agency—any officer prescribed by the regulations for the purposes of this definition for that agency. serious narcotics offence means an offence under Division 2 of Part 2 of the Drug Misuse and Trafficking Act 1985 but does not include an offence that is declared by the regulations not to be a serious narcotics offence for the purposes of this Act. supervision or detention order under the Terrorism (High Risk Offenders) Act 2017 means any of the following orders under that Act— (a) an extended supervision order, (b) an interim supervision order, (c) a continuing detention order, (d) an interim detention order, (e) an emergency detention order. surveillance device means— (a) a data surveillance device, a listening device, an optical surveillance device or a tracking device, or (b) a device that is a combination of any 2 or more of the devices referred to in paragraph (a), or (c) a device of a kind prescribed by the regulations. surveillance device warrant means a warrant issued under Division 2 of Part 3 or under section 35(3). surveillance device warrant particulars—see section 20(1). Surveillance Devices Commissioner means the Surveillance Devices Commissioner appointed under section 51A. terrorism related offender means a person who is any of the following within the meaning of the Terrorism (High Risk Offenders) Act 2017— (a) a convicted NSW terrorist offender, (b) a convicted NSW underlying terrorism offender, (c) a convicted NSW terrorism activity offender. this jurisdiction means New South Wales. 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 17(4) or 25(4). use of a surveillance device includes use of the device to record a conversation or other activity. vehicle includes the following— (a) an aircraft, (b) a vessel, (c) a part of a vehicle, whether in or outside this jurisdiction. warrant means surveillance device warrant or retrieval warrant. Note. The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) For the purposes of this Act, an investigation into an offence against the law of this jurisdiction is taken to be conducted in this jurisdiction (whether or not it is also conducted in another jurisdiction) if a law enforcement officer of this jurisdiction participates in the investigation. Note. Subsection (2) is intended to cover the situation where an officer of this jurisdiction is conducting or participating in an investigation wholly in another jurisdiction for the purposes of an offence against a law of this jurisdiction (eg a NSW officer is investigating a conspiracy to import drugs into NSW from Victoria, and all the evidence of the offence is in Victoria). (3) A thing is not precluded from being a listening device within the meaning of this Act merely because it is also capable of— (a) recording or transmitting visual images (for example a video camera), or (b) recording or transmitting its own position. (4) A reference in this Act to— (a) a report of a private conversation includes a reference to a report of the substance, meaning or purport of the conversation, and (b) a record of a private conversation includes a reference to a statement prepared from such a record. (5) A reference in this Act to the retrieval of a surveillance device includes, in relation to a data surveillance device, a reference to the removal or erasure of the device. (6) Notes included in this Act do not form part of this Act. 5 Eligible Judges and Magistrates (1) In this Act— eligible Judge means a Judge in relation to whom a consent under subsection (2) and a declaration under subsection (3) are in force. eligible Magistrate means a Magistrate in relation to whom a consent under subsection (2) and a declaration under subsection (3) are in force. Judge means a person who is a Judge of the Supreme Court. (2) A Judge or Magistrate may, by instrument in writing, consent to being the subject of a declaration by the Attorney General under subsection (3). (3) The Attorney General may, by instrument in writing, declare Judges or Magistrates in relation to whom consents are in force under subsection (2) to be eligible Judges and eligible Magistrates, respectively, for the purposes of this Act. (4) An eligible Judge has, in relation to the exercise of a function conferred on an eligible Judge by this Act, the same protection and immunity as a Judge of the Supreme Court has in relation to proceedings in the Supreme Court. (5) An eligible Magistrate has, in relation to the exercise of a function conferred on an eligible Magistrate by this Act, the same protection and immunity as a Magistrate has in relation to proceedings in the Local Court. (6) A Judge or Magistrate who has given consent under this section may, by instrument in writing, revoke the consent. (7) A declaration of an eligible Judge under subsection (3) cannot be revoked by the Attorney General. However, the declaration of a Judge as an eligible Judge is revoked if— (a) the eligible Judge revokes his or her consent in accordance with subsection (6) or ceases to be a Judge, or (b) the Chief Justice notifies the Attorney General that the Judge should not continue to be an eligible Judge. (8) A declaration of an eligible Magistrate under subsection (3) cannot be revoked by the Attorney General. However, the declaration of a Magistrate as an eligible Magistrate is revoked if— (a) the eligible Magistrate revokes his or her consent in accordance with subsection (6) or ceases to be a Magistrate, or (b) the Chief Magistrate notifies the Attorney General that the Magistrate should not continue to be an eligible Magistrate. (9) To avoid doubt, the selection of the eligible Judge or eligible Magistrate to exercise any particular function conferred on eligible Judges or eligible Magistrates is not to be made by the Attorney General or other Minister of the Crown, and the exercise of that particular function is not subject to the control and direction of the Attorney General or other Minister of the Crown. 6 Act to bind Crown This Act binds the Crown in right of New South Wales and, in so far as the legislative power of the Parliament of New South Wales permits, the Crown in all its other capacities. Part 2 Regulation of installation, use and maintenance of surveillance devices Note. Offences in this Part must be dealt with on indictment (see section 5 of the Criminal Procedure Act 1986). However, those listed in Part 10 of Table 2 of Schedule 1 to that Act may be dealt with summarily. 7 Prohibition on installation, use and maintenance of listening devices (1) A person must not knowingly install, use or cause to be used or maintain a listening device— (a) to overhear, record, monitor or listen to a private conversation to which the person is not a party, or (b) to record a private conversation to which the person is a party. Maximum penalty—500 penalty units (in the case of a corporation) or 100 penalty units or 5 years imprisonment, or both (in any other case). (2) Subsection (1) does not apply to the following— (a) the installation, use or maintenance of a listening device in accordance with a warrant, emergency authorisation, corresponding warrant or corresponding emergency authorisation, (b) the installation, use or maintenance of a listening device in accordance with the Telecommunications (Interception and Access) Act 1979, or any other law, of the Commonwealth, (c) the unintentional hearing of a private conversation by means of a listening device, (d) the use of a listening device to record a refusal to consent to the recording of an interview by a member of the NSW Police Force in connection with the commission of an offence by a person suspected of having committed the offence, (e) the use of a listening device and any enhancement equipment in relation to the device solely for the purposes of the location and retrieval of the device or equipment, (f) the use of a listening device, being a device integrated into a Taser issued to a member of the NSW Police Force, to record the operation of the Taser and the circumstances surrounding its operation, (g) the use, in accordance with section 50A, of body-worn video by a police officer, (h) the installation, use or maintenance of a listening device in accordance with the Witness Protection Act 1995 or an instrument made under that Act. (3) Subsection (1)(b) does not apply to the use of a listening device by a party to a private conversation if— (a) all of the principal parties to the conversation consent, expressly or impliedly, to the listening device being so used, or (b) a principal party to the conversation consents to the listening device being so used and the recording of the conversation— (i) is reasonably necessary for the protection of the lawful interests of that principal party, or (ii) is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation. (4) Subsection (1) does not apply to the use of a listening device to record, monitor or listen to a private conversation if— (a) a party to the private conversation is a participant in an authorised operation and, in the case of a participant who is a law enforcement officer, is using an assumed name or assumed identity, and (b) the person using the listening device is that participant or another participant in that authorised operation. (5) In this section— authorised operation and participant in an authorised operation have the same meanings as in the Law Enforcement (Controlled Operations) Act 1997. Note. The definition of participant in an authorised operation includes a civilian participant within the meaning of the Law Enforcement (Controlled Operations) Act 1997. 8 Installation, use and maintenance of optical surveillance devices without consent (1) A person must not knowingly install, use or maintain an optical surveillance device on or within premises or a vehicle or on any other object, to record visually or observe the carrying on of an activity if the installation, use or maintenance of the device involves— (a) entry onto or into the premises or vehicle without the express or implied consent of the owner or occupier of the premises or vehicle, or (b) interference with the vehicle or other object without the express or implied consent of the person having lawful possession or lawful control of the vehicle or object. Maximum penalty—500 penalty units (in the case of a corporation) or 100 penalty units or 5 years imprisonment, or both (in any other case). (2) Subsection (1) does not apply to the following— (a) the installation, use or maintenance of an optical surveillance device in accordance with a warrant, emergency authorisation, corresponding warrant or corresponding emergency authorisation, (b) the installation, use or maintenance of an optical surveillance device in accordance with a law of the Commonwealth, (c) the use of an optical surveillance device and any enhancement equipment in relation to the device solely for the purpose of the location and retrieval of the device or equipment, (d) the installation, use or maintenance of an optical surveillance device by a law enforcement officer in the execution of a search warrant or crime scene warrant (including the use of an optical surveillance device to record any activity in connection with the execution of the warrant), Note. See also section 255 of the Children and Young Persons (Care and Protection) Act 1998. (d1) the use of an optical surveillance device by a law enforcement officer in the conduct of a search or inspection (including the use of an optical surveillance device to record any activity in connection with the search or inspection) that is permitted without a warrant under the following— (i) the Child Protection (Offenders Registration) Act 2000, (ia) the Drug Supply Prohibition Order Pilot Scheme Act 2020, (ii) the Firearms Act 1996, (iii) the Restricted Premises Act 1943, (iv) the Terrorism (Police Powers) Act 2002, (e) the use of an optical surveillance device, being a device integrated into a Taser issued to a member of the NSW Police Force, to record the operation of the Taser and the circumstances surrounding its operation, (f) the use, in accordance with section 50A, of body-worn video by a police officer. (2A) Subsection (1) does not apply to the use of an optical surveillance device to record visually or observe the carrying on of an activity if— (a) a party to the activity is a participant in an authorised operation and, if the participant is a law enforcement officer, the participant is using an assumed name or assumed identity, and (b) the person using the optical surveillance device is that participant or another participant in that authorised operation. (3) In this section— authorised operation and participant in an authorised operation have the same meanings as in the Law Enforcement (Controlled Operations) Act 1997. Note. The definition of participant in an authorised operation includes a civilian participant within the meaning of the Law Enforcement (Controlled Operations) Act 1997. crime scene warrant has the same meaning as it has in the Law Enforcement (Powers and Responsibilities) Act 2002. search warrant means a search warrant issued under— (a) any of the following provisions of the Law Enforcement (Powers and Responsibilities) Act 2002— (i) Division 2 (Police powers relating to warrants) of Part 5, (ii) Part 6 (Search, entry and seizure powers relating to domestic violence offences), (iii) Division 1 (Drug premises) of Part 11, or (a1) a provision specified in Schedule 2 to the Law Enforcement (Powers and Responsibilities) Act 2002, or (a2) Part 3 (Covert search warrants) of the Terrorism (Police Powers) Act 2002, or (b) section 40 of the Independent Commission Against Corruption Act 1988, or (c) section 17 of the Crime Commission Act 2012, or (d) Division 2 or 3 of Part 4 of the Criminal Assets Recovery Act 1990, (e) section 79 of the Law Enforcement Conduct Commission Act 2016. 9 Prohibition on installation, use and maintenance of tracking devices (1) A person must not knowingly install, use or maintain a tracking device to determine the geographical location of— (a) a person—without the express or implied consent of that person, or (b) an object—without the express or implied consent of a person in lawful possession or having lawful control of that object. Maximum penalty—500 penalty units (in the case of a corporation) or 100 penalty units or 5 years imprisonment, or both (in any other case). (2) Subsection (1) does not apply to the following— (a) the installation, use or maintenance of a tracking device in accordance with a warrant, emergency authorisation, corresponding warrant or corresponding emergency authorisation, (b) the installation, use or maintenance of a tracking device in accordance with a law of the Commonwealth, (c) the installation, use or maintenance of a tracking device for a lawful purpose. 10 Prohibition on installation, use and maintenance of data surveillance devices (1) A person must not knowingly install, use or maintain a data surveillance device on or in premises to record or monitor the input of information into, or the output of information from, a computer on the premises if the installation, use or maintenance of the device involves— (a) entry onto or into the premises without the express or implied consent of the owner or occupier of the premises, or (b) interference with the computer or a computer network on the premises without the express or implied consent of the person having lawful possession or lawful control of the computer or computer network. Maximum penalty—500 penalty units (in the case of a corporation) or 100 penalty units or 5 years imprisonment, or both (in any other case). (2) Subsection (1) does not apply to the following— (a) the installation, use or maintenance of a data surveillance device in accordance with a warrant, emergency authorisation, corresponding warrant or corresponding emergency authorisation, (b) the installation, use or maintenance of a data surveillance device in accordance with a law of the Commonwealth, (c) the installation, use or maintenance of a data surveillance device in accordance with the Witness Protection Act 1995 or an instrument made under that Act. 11 Prohibition on communication or publication of private conversations or recordings of activities (1) A person must not publish, or communicate to any person, a private conversation or a record of the carrying on of an activity, or a report of a private conversation or carrying on of an activity, that has come to the person's knowledge as a direct or indirect result of the use of a listening device, an optical surveillance device or a tracking device in contravention of a provision of this Part. Maximum penalty—500 penalty units (in the case of a corporation) or 100 penalty units or 5 years imprisonment, or both (in any other case). (2) Subsection (1) does not apply to the following— (a) if the communication or publication is made— (i) to a party to the private conversation or activity, or (ii) with the consent, express or implied, of all the principal parties to the private conversation or activity, or (iii) for the purpose of investigating or prosecuting an offence against this section, or (iv) in the course of proceedings for an offence against this Act or the regulations, (b) if the communication or publication is no more than is reasonably necessary in connection with an imminent threat of— (i) serious violence to persons or of substantial damage to property, or (ii) commission of a serious narcotics offence. (3) A person who obtains knowledge of a private conversation or activity in a manner that does not involve a contravention of a provision of this Part is not prevented from communicating or publishing the knowledge so obtained even if the same knowledge was also obtained in a manner that contravened this Part. 12 Possession of record of private conversation or activity (1) A person must not possess a record of a private conversation or the carrying on of an activity knowing that it has been obtained, directly or indirectly, by the use of a listening device, optical surveillance device or tracking device in contravention of this Part. Maximum penalty—500 penalty units (in the case of a corporation) or 100 penalty units or 5 years imprisonment, or both (in any other case). (2) Subsection (1) does not apply where the record is in the possession of the person— (a) in connection with proceedings for an offence against this Act or the regulations, or (b) with the consent, express or implied, of all of the principal parties to the private conversation or persons who took part in the activity, or (c) as a consequence of a communication or publication of that record to that person in circumstances that do not constitute a contravention of this Part. 13 Manufacture, supply and possession of listening and other devices for unlawful use (1) A person must not— (a) manufacture, or (b) supply or offer to supply, or (c) possess, a data surveillance device, listening device, optical surveillance device or tracking device with the intention of using it, or it being used, in contravention of this Part. Maximum penalty—500 penalty units (in the case of a corporation) or 100 penalty units or 5 years imprisonment, or both (in any other case). (2) In subsection (1), supply includes sell and distribute. 14 Communication and publication of information from the use of a data surveillance device (1) A person must not publish, or communicate to any person, any information regarding the input of information into, or the output of information from, a computer obtained as a direct or indirect result of the use of a data surveillance device in contravention of this Part. Maximum penalty—500 penalty units (in the case of a corporation) or 100 penalty units or 5 years imprisonment, or both (in any other case). (2) Subsection (1) does not apply to the following— (a) to a communication or publication made— (i) to the person having lawful possession or control of the computer, or (ii) with the consent, express or implied, of the person having lawful possession or lawful control of the computer, or (iii) for the purpose of investigating or prosecuting an offence against this section, or (iv) in the course of proceedings for an offence against this Act or the regulations, (b) if the communication or publication is no more than is reasonably necessary in connection with an imminent threat of— (i) serious violence to persons or substantial damage to property, or (ii) the commission of a serious narcotics offence. (3) A person who obtains information in a manner that does not involve a contravention of this Part is not prevented from publishing or communicating the information so obtained even if the same information was also obtained in a manner that contravened this Part. Part 3 Warrants Division 1 Preliminary 15 Types of warrant (1) The following types of warrant may be issued under this Part— (a) a surveillance device warrant, (b) a retrieval warrant. (2) A warrant may be issued in respect of one or more kinds of surveillance devices and more than one surveillance device of the same kind. 16 Who may issue warrants? (1) An eligible Judge may issue any warrant under this Part. (2) An eligible Magistrate may issue— (a) a surveillance device warrant that authorises the use of a tracking device only, or (b) a retrieval warrant in respect of a tracking device under a warrant referred to in paragraph (a) if an eligible Magistrate issued the original warrant. Division 2 Surveillance device warrants 17 Application for a surveillance device warrant (1) 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) a relevant offence has been, is being, is about to be or is likely to be committed, and (b) an investigation into that offence is being, will be or is likely to be conducted in this jurisdiction or in this jurisdiction and in one or more participating jurisdictions, and (c) the use of a surveillance device is necessary for the purpose of an investigation into that offence to enable evidence to be obtained of the commission of that offence or the identity or location of the offender. (1A) A law enforcement officer (or another person on his or her behalf) may also apply for the issue of a surveillance device warrant for the use of a surveillance device in a correctional centre if the law enforcement officer on reasonable grounds suspects or believes that— (a) an eligible offender within the meaning of the Terrorism (High Risk Offenders) Act 2017 is an inmate of the correctional centre, and (b) an investigation is being, will be or is likely to be conducted into whether an application for a supervision or detention order should be made under the Terrorism (High Risk Offenders) Act 2017 in respect of the offender on the basis that the offender is a terrorism related offender, and (c) the use of a surveillance device is necessary for the purpose of an investigation into whether an application for a supervision or detention order under the Terrorism (High Risk Offenders) Act 2017 should be made to enable evidence to be obtained that would be likely to support the application. (2) The application may be made to— (a) an eligible Judge in any case, or (b) an eligible Magistrate in the case of an application for a surveillance device warrant authorising the use of a tracking device only. (3) The application must be in the form of an affidavit that— (a) includes the information required to complete the surveillance device warrant particulars, and (b) sets out the grounds on which the warrant is sought, and (c) sets out the details of any alternative means of obtaining the evidence or information sought under the warrant and the extent to which those means may assist or prejudice the investigation, and (d) states whether any attempts have been made to use an alternative means and, if so, the result of the attempts, and (e) sets out the details of any previous warrant or emergency authorisation sought or issued under this Act in relation to the relevant offence, and (f) as far as reasonably practicable, identifies persons who may be incidentally recorded by the surveillance device, and (g) includes any information known to the applicant that may be adverse to the warrant application or, if no adverse information is known, a statement to that effect. (3A) (Repealed) (4) The application may be made in a form other than an affidavit if the law enforcement officer believes that— (a) the immediate use of a surveillance device is necessary for a purpose referred to in subsection (1)(c) or (1A)(c), and (b) it is impracticable for the application to be prepared and sworn in the form of an affidavit for the purpose of making the application as required by subsection (3). (5) If subsection (4) applies, the applicant must— (a) provide the eligible Judge or eligible Magistrate with any information the eligible Judge or eligible Magistrate considers is reasonably practicable in the circumstances, and (b) within 72 hours after making the application, send a duly sworn affidavit that includes the information required under subsection (3) to the eligible Judge or eligible Magistrate, whether or not a warrant has been issued. (5A) A notice containing the information required under subsection (3) must also be served on the Attorney General. (6) An application for a warrant is not to be heard in open court. 18 Remote application (1) An application for a surveillance device warrant may be made under section 17 by telephone, e-mail or any other means of communication if— (a) a law enforcement officer reasonably believes that it is impracticable for the application to be made in person, or (b) a law enforcement officer reasonably believes that the immediate use of a surveillance device is necessary, or (c) the eligible Judge or eligible Magistrate who is to determine the application requests that it is made that way. (2) If an affidavit has been prepared, the person applying must transmit a copy of the affidavit, whether sworn or unsworn, to the eligible Judge or eligible Magistrate who is to determine the application. 19 Determining the application (1) An eligible Judge or eligible Magistrate may issue a surveillance device warrant if satisfied— (a) that there are reasonable grounds for the suspicion or belief founding the application for the warrant, and (b) in the case of an unsworn application—that it would have been impracticable for the application to have been prepared or sworn before the application was made, and (c) in the case of a remote application—the application is made is accordance with section 18, and (d) except in the case of a remote application—the notice referred to in section 17(5A) has been served on the Attorney General, and (e) in the case of a remote application—the Attorney General has been notified of the application and been given as much of the information required to be included in the notice referred to in section 17(5A) as it is reasonable to provide in the circumstances, and (f) the Attorney General has had an opportunity to be heard in relation to the granting of the warrant. (2) In determining whether a surveillance device warrant should be issued, the eligible Judge or eligible Magistrate must have regard to— (a) for an application under section 17(1)—the nature and gravity of the alleged offence in respect of which the warrant is sought, and (b) the extent to which the privacy of any person is likely to be affected, and (c) 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 (d) the extent to which the information sought to be obtained would assist the investigation, and (e) the evidentiary value of any information sought to be obtained, and (f) for an application under section 17(1)—any previous warrant sought or issued under this Part or a corresponding law (if known) in connection with the same offence, and (g) for an application under section 17(1A)—any previous warrant sought or issued under this Part or a corresponding law in connection with the same inmate. 20 Contents of surveillance device warrants (1) A surveillance device warrant must specify the following (the surveillance device warrant particulars)— (a) the name of the applicant, (b) the alleged relevant offence in respect of which the warrant is issued (or for a warrant based on an application under section 17(1A)—the ground on which it is alleged that the inmate is a terrorism related offender), (c) the kind of surveillance device authorised to be used, (d) if the warrant authorises the use of a surveillance device on or in premises or a vehicle—the premises or vehicle on or in which the use of the surveillance device is authorised, (e) if the warrant authorises the use of a surveillance device in or on an object or class of object—the object or class of object in or on which the use of the surveillance device is authorised, (f) if the warrant authorises the use of a surveillance device on or about the body of a person—the name of the person (or, if the identity of the person is unknown, that fact), (g) if the warrant authorises the use of a surveillance device in respect of the conversations, activities or geographical location of a person—the name of the person (if known), (h) the name of the law enforcement officer primarily responsible for executing the warrant, (i) the period during which the warrant is to be in force, being a period not exceeding 90 days. (2) A warrant must also include the following— (a) a statement that the eligible Judge or eligible Magistrate is satisfied of the matters referred to in section 19(1) and has had regard to the matters referred to in section 19(2), (b) the date the warrant is issued, (c) the date on which the warrant commences, being not more than 10 days after the date on which the warrant is issued, (d) details of any conditions subject to which premises or a vehicle may be entered, or a surveillance device used, under the warrant, (e) the period within which a report about the use of the surveillance device authorised by the warrant must be furnished to the eligible Judge or eligible Magistrate under section 44(1), being a period that expires not less than 60 days after the expiry of the warrant. (3) A warrant must be signed by the eligible Judge or eligible Magistrate issuing it and include his or her name. (4) If an eligible Judge or eligible Magistrate issues a warrant on a remote application— (a) the eligible Judge or eligible Magistrate must inform the applicant of— (i) the terms of the warrant, and (ii) the date on which and the time at which the warrant was issued, and cause those details to be entered in a register kept by the Judge or Magistrate for that purpose, and (b) the Judge or Magistrate must provide the applicant with a copy of the warrant as soon as possible. 21 What a surveillance device warrant authorises (1) A surveillance device warrant may authorise, as specified in the warrant, any one or more of the following— (a) the use of a surveillance device on or in specified premises or a vehicle, (b) the use of a surveillance device in or on a specified object or class of object, (c) the use of a surveillance device in respect of the conversations, activities or geographical location of a specified person or a person whose identity is unknown, (d) the use of a surveillance device on or about the body of a specified person. (2) A surveillance device warrant authorises— (a) for a warrant of a kind referred to in subsection (1)(a)— (i) the installation, use and maintenance of a surveillance device of the kind specified in the warrant on or in the specified premises or vehicle, and (ii) the entry, by force if necessary, onto or into the premises or vehicle, or other specified premises adjoining or providing access to the premises or the vehicle, for any of the purposes referred to in subparagraph (i) or subsection (3), and (b) for a warrant of a kind referred to in subsection (1)(b)— (i) the installation, use and maintenance of a surveillance device of the kind specified in the warrant in or on the specified object or an object of the specified class, and (ii) the entry, by force if necessary, onto or into any premises or vehicle where the object, or an object of the specified class, is reasonably believed to be or is likely to be, or other premises adjoining or providing access to those premises or the vehicle, for any of the purposes referred to in subparagraph (i) or subsection (3), and (c) for a warrant of a kind referred to in subsection (1)(c)— (i) the installation, use and maintenance of a surveillance device of the kind specified in the warrant, on or in premises or a vehicle where the person is reasonably believed to be or likely to be in the future, and (ii) the entry, by force if necessary, onto or into the premises or vehicle referred to in subparagraph (i), or other premises adjoining or providing access to those premises or the vehicle, for any of the purposes referred to in subparagraph (i) or subsection (3), and (d) for a warrant of a kind referred to in subsection (1)(d)—the use of the surveillance device of the kind specified in the warrant on or about the body of the person specified in the warrant. (3) Each warrant also authorises— (a) the retrieval of the surveillance device, and (b) the installation, use, maintenance and retrieval of any enhancement equipment in relation to the surveillance device, and (c) the use of an assumed identity for the purpose of the installation, use, maintenance or retrieval of the surveillance device or enhancement equipment, and (d) the disconnection of, or otherwise making inoperative, any security system for the purpose of the installation, maintenance or retrieval of the surveillance device or enhancement equipment, and (e) the temporary removal of an object or vehicle from premises for the purpose of the installation, maintenance or retrieval of the surveillance device or enhancement equipment and the return of the object or vehicle to the premises, and (f) the breaking open of anything for the purpose of the installation, maintenance or retrieval of the surveillance device or enhancement equipment, and (g) the connection of the device or enhancement equipment to an electricity supply system and the use of electricity from that system to operate the surveillance device or enhancement equipment, and (h) the connection of the device or equipment to a telecommunications system or network and the use of that system or network in connection with the operation of the surveillance device or enhancement equipment, and (i) the provision of assistance or technical expertise to the law enforcement officer named in the warrant in the installation, use, maintenance or retrieval of the surveillance device or enhancement equipment under the warrant. (4) If a surveillance device remains on or in premises or a vehicle after the expiry of the surveillance device warrant authorising its installation, use and maintenance, the warrant is taken also to authorise, for the period of 10 days after that expiry, any action to be taken in respect of the retrieval of the device that would be authorised if the surveillance device warrant were a retrieval warrant. Note. Section 29 specifies the action that is authorised to be taken by a retrieval warrant. If a surveillance device remains on or in premises or vehicle for more than 10 days after its expiry, a retrieval warrant must be obtained under Division 3 to authorise retrieval of the device and any enhancement equipment in relation to it. (5) A surveillance device warrant may authorise the doing of anything reasonably necessary to conceal the fact that anything has been done in relation to the installation, use, maintenance or retrieval of a surveillance device or enhancement equipment under the warrant. (6) A law enforcement officer may use a surveillance device under a warrant only if he or she is acting in the performance of his or her duty. (7) This section applies to a warrant subject to any conditions specified in the warrant. (8) Nothing in this section authorises the doing of anything for which a warrant would be required under the Telecommunications (Interception and Access) Act 1979 of the Commonwealth. 22 Extension and variation of surveillance device warrant (1) A law enforcement officer to whom a surveillance device warrant has been issued (or another person on his or her behalf) may apply, at any time before expiry of the warrant— (a) for an extension of the warrant for a period not exceeding 90 days from the day on which it would otherwise expire, or (b) for a variation of any of the other terms of the warrant. (2) The application is to be made to— (a) an eligible Judge, if the warrant was issued by an eligible Judge, or (b) an eligible Magistrate, if the warrant was issued by an eligible Magistrate. (3) Sections 17 and 18 apply, with any necessary changes, to an application under this section as if it were an application for a warrant. (4) The eligible Judge or eligible Magistrate may grant an application, subject to any conditions he or she thinks fit, if satisfied that the matters referred to in section 19(1) still exist, having regard to the matters in section 19(2). (5) An eligible Judge or eligible Magistrate who grants an application must endorse the new expiry date or the other varied term on the original warrant. (6) An application in respect of a warrant may be made under this section more than once. 23 Revocation of surveillance device warrant (1) A surveillance device warrant may be revoked at any time before the expiration of the period of validity specified in it by— (a) an eligible Judge, if an eligible Judge issued the warrant, or (b) an eligible Magistrate, if an eligible Magistrate issued the warrant. (2) An eligible Judge or eligible Magistrate may revoke a surveillance device warrant on application by or on behalf of a law enforcement officer. (3) The eligible Judge or eligible Magistrate who revokes a warrant on the application of a law enforcement officer is taken to have notified the chief officer of the law enforcement agency of which the law enforcement officer to whom the warrant was issued is a member when the eligible Judge or eligible Magistrate revokes the warrant. 24 Discontinuance of use of surveillance device under warrant (1) This section applies if a surveillance device warrant is issued to a law enforcement officer. (2) If the chief officer of the law enforcement agency of which the law enforcement officer concerned is a member is satisfied that the use of a surveillance device under the warrant is no longer necessary for the warrant purpose, the chief officer must— (a) take the steps necessary to ensure that use of the surveillance device authorised by the warrant is discontinued as soon as practicable, and (b) cause an application to be made for the revocation of the warrant under section 23. (2A) The chief officer of the law enforcement agency is not required to cause an application to be made for the revocation of a warrant under section 23 if the warrant will cease to be in force within 5 days after the day on which the chief officer became satisfied the use of a surveillance device under the warrant was no longer necessary. (3) If the chief officer is notified that the warrant has been revoked under section 23, he or she must take the steps necessary to ensure that use of the surveillance device authorised by the warrant is discontinued immediately. (4) If the law enforcement officer to whom the warrant is issued, or who is primarily responsible for executing the warrant, believes that the use of a surveillance device under the warrant is no longer necessary for the warrant purpose, he or she must inform the chief officer of the law enforcement agency immediately. (5) In this section— warrant purpose means— (a) in relation to a warrant that is issued based on an application under section 17(1)—the purpose of enabling evidence to be obtained of the commission of the relevant offence or the identity or location of the offender, or (b) in relation to a warrant that is issued based on an application under section 17(1A)—the purpose of enabling evidence to be obtained that would be likely to support an application for a supervision or detention order under the Terrorism (High Risk Offenders) Act 2017 in respect of the inmate. Division 3 Retrieval warrants 25 Application for a retrieval warrant (1) A law enforcement officer (or another person on his or her behalf) may apply for the issue of a retrieval warrant in respect of a surveillance device that was lawfully installed on premises, or in or on a vehicle or other object, under a surveillance device warrant and which the law enforcement officer on reasonable grounds suspects or believes is still on those premises or in or on that vehicle or object, or on other premises or in or on another vehicle or other object. (2) The application may be made to— (a) an eligible Judge in any case, or (b) an eligible Magistrate in the case of an application for a retrieval warrant authorising the retrieval of a tracking device only. (3) An application must include the information required (having regard to the warrant being sought) to complete the retrieval warrant particulars set out in section 28(1). (3A) Subject to this section, an application must be accompanied by an affidavit that— (a) supports the application and sets out the grounds on which the warrant is sought, and (b) includes any information known to the applicant that may be adverse to the warrant application or, if no adverse information is known, a statement to that effect. (4) If a law enforcement officer believes that— (a) the immediate retrieval of a surveillance device is necessary, and (b) 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. (5) If subsection (4) applies, the applicant must— (a) provide as much information as the eligible Judge or eligible Magistrate considers is reasonably practicable in the circumstances, and (b) not later than 72 hours following the making of the application, send a duly sworn affidavit to the eligible Judge or eligible Magistrate who determined the application, whether or not a warrant has been issued. (5A) A notice containing the information in subsections (3) and (3A) must also be served on the Attorney General. (6) An application for a retrieval warrant is not to be heard in open court. 26 Remote application (1) An application for a retrieval warrant may be made under section 25 by telephone, e-mail or any other means of communication if— (a) a law enforcement officer reasonably believes that it is impracticable for the application to be made in person, or (b) the eligible Judge or eligible Magistrate who is to determine the application requests that it is made that way. (2) If an affidavit has been prepared, the person applying must transmit a copy of the affidavit, whether sworn or unsworn, to the eligible Judge or eligible Magistrate who is to determine the application. 27 Determining an application (1) An eligible Judge or eligible Magistrate may issue a retrieval warrant if the Judge or Magistrate is satisfied— (a) that there are reasonable grounds for the suspicion or belief founding the application for the warrant, and (b) in the case of an unsworn application—that it would be impracticable for an affidavit to have been sworn before the application was made, and (c) in the case of a remote application—the application is made is accordance with section 26, and (d) except in the case of a remote application—the notice referred to in section 25(5A) has been served on the Attorney General, and (e) in the case of a remote application—the Attorney General has been notified of the application and been given as much of the information required to be included in the notice referred to in section 25(5A) as it is reasonable to provide in the circumstances, and (f) the Attorney General has had an opportunity to be heard in relation to the granting of the warrant. (2) In determining whether a retrieval warrant should be issued, the eligible Judge or eligible Magistrate must have regard to— (a) the extent to which the privacy of any person is likely to be affected, and (b) the public interest in retrieving the device sought to be retrieved. 28 Contents of retrieval warrants (1) A retrieval warrant must specify the following (the retrieval warrant particulars)— (a) the name of the applicant, (b) the kind of surveillance device authorised to be retrieved, (c) the premises, vehicle or other object from which the surveillance device is to be retrieved, (d) the name of the law enforcement officer primarily responsible for executing the warrant, (e) the period during which the warrant is to be in force, being a period not exceeding 90 days. (1A) A warrant must also include the following— (a) a statement that the eligible Judge or eligible Magistrate is satisfied of the matters referred to in section 27(1) and has had regard to the matters referred to in section 27(2), (b) the date the warrant is issued, (c) the date on which the warrant commences, being not more than 10 days after the date on which the warrant is issued, (d) details of any conditions subject to which premises or a vehicle may be entered under the warrant, (e) the period within which a report about the retrieval of the surveillance device authorised by the retrieval warrant must be furnished to the eligible Judge or eligible Magistrate under section 44(6), being a period that expires not less than 60 days after the expiry of the warrant. (2) A warrant must be signed by the eligible Judge or eligible Magistrate issuing it and include his or her name. (3) If the eligible Judge or eligible Magistrate issues a warrant on a remote application— (a) the Judge or Magistrate must inform the applicant of— (i) the term