Police Powers (Surveillance Devices) Act 2006 (Tas)

Police Powers (Surveillance Devices) Act 2006 An Act to provide for the installation, use, maintenance and retrieval of surveillance devices in criminal investigations within and extending beyond this jurisdiction, for the use by police officers of personal cameras that are hand-held or worn and of information obtained by the use of such cameras, and for other matters [Royal Assent 18 December 2006] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART 1 - Preliminary 1. Short title This Act may be cited as the Police Powers (Surveillance Devices) Act 2006 . 2. Commencement This Act commences on a day to be proclaimed. 3. Interpretation (1) 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 – (a) in relation to the Police Service, the Commissioner of Police; or (b) 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 – (a) the Police Service; or (b) the Australian Crime Commission; law enforcement officer means – (a) in relation to the Police Service, a police officer; and (b) 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 – (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; personal camera means – (a) 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 (b) 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 – (a) land and a structure, building, caravan, vehicle or vessel, whether temporary or not and whether under construction or not; and (b) a place, whether enclosed or built on or not and whether on, within, over or under land or water; and (c) 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 – (a) an audio, visual or audio-visual record; and (b) a record in digital form; and (c) a documentary record prepared from a record referred to in paragraph (a) or (b) ; relevant offence means – (a) an offence against the law of this jurisdiction punishable by a maximum term of imprisonment of 3 years or more; or (b) an offence against the law of this jurisdiction that is prescribed by the regulations; relevant proceeding means – (a) the prosecution of a relevant offence; or (b) a bail application, or a review of a decision to grant or refuse a bail application, in relation to a relevant offence; or (c) a proceeding with a view to the committal of a person to stand for trial for a relevant offence; or (d) an application for the exercise of a power in relation to a relevant offence – (i) to a court or judicial officer; or (ii) by a law enforcement officer to anyone under this Act; or (e) 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 (f) 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 (g) a proceeding concerning the validity of a warrant, emergency authorisation, corresponding warrant or corresponding emergency authorisation; or (h) a disciplinary proceeding against a public officer; or (i) 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 (j) 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 (k) 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 (l) 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 (m) a proceeding under Division 1 of Part 4 of the International War Crimes Tribunals Act 1995 of the Commonwealth; or (n) 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 – (a) in relation to the Police Service, a police officer of or above the rank of inspector; or (b) 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) 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 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. (2) 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. 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 of this jurisdiction (e.g. Tasmanian officer is investigating a conspiracy to import drugs into Tasmania from Victoria, and all the evidence of the offence is in Victoria). (3) A note included in this Act does not form part of the Act. 4. Meaning of "reckless" (1) A person is "reckless" in relation to a circumstance if – (a) the person is aware of a substantial risk that the circumstance exists or will exist; and (b) having regard to the circumstances known to the person, it is unjustifiable to take the risk. (2) A person is "reckless" in relation to a result if – (a) the person is aware of a substantial risk that the result will happen; and (b) having regard to the circumstances known to the person, it is unjustifiable to take the risk. (3) It is a question of fact as to whether taking a risk is unjustifiable. 5. Relationship to other laws and matters (1) 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. (2) This Act is not intended to limit a discretion that a court has – (a) to admit or exclude evidence in any proceedings; 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) 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. (5) 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. (6) The following Acts do not apply to activities and records under this Act: (a) the Archives Act 1983 ; (b) the Right to Information Act 2009 ; (c) the Personal Information Protection Act 2004 . 6. Act binds Crown (1) This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities. (2) Nothing in this Act makes the Crown liable to be prosecuted for an offence. PART 2 - Warrants Division 1 - Introduction 7. 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 device. (3) 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. 8. Who may issue warrants? (1) The Supreme Court may issue any warrant under this Part. (2) A magistrate may issue – (a) a surveillance device warrant, other than a warrant that authorises the use of a surveillance device outside Tasmania; or (b) a retrieval warrant in respect of a surveillance device authorised under a warrant referred to in paragraph (a) . Division 2 - Surveillance device warrants 9. Application for 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, in this and one or more participating jurisdictions or in one or more participating jurisdictions; and (c) 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. (2) The application may be made to – (a) the Supreme Court in any case; or (b) 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. (3) An application – (a) must specify – (i) the name of the applicant; and (ii) the nature and duration of the warrant sought, including the kind of surveillance device sought to be authorised; and (b) 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). (4) If a law enforcement officer believes that – (a) the immediate use of a surveillance device is necessary for a purpose referred to in subsection (1)(c) ; 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 Supreme Court or 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 Supreme Court or magistrate, whether or not a warrant has been issued. (6) The Supreme Court or a magistrate must hear an application for a warrant in the absence of anyone other than the following: (a) the applicant; (b) someone the judge or magistrate permits to be present; (c) an Australian legal practitioner representing anyone mentioned in paragraphs (a) and (b) . (7) Also the Supreme Court or magistrate must hear the application – (a) 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 (b) without the relevant person having been informed of the application. 10. Remote application (1) 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. (2) 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. 11. Determining the application (1) The Supreme Court or a 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 an affidavit to have been prepared or sworn before the application was made; and (c) in the case of a remote application, that it would have been impracticable for the application to have been made in person. (2) In determining whether a surveillance device warrant should be issued, the judge or magistrate must have regard to – (a) the nature and seriousness 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 evidentiary or intelligence value of any information sought to be obtained; and (e) 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. 12. What must a surveillance device warrant contain? (1) A surveillance device warrant must – (a) state that the Supreme Court or magistrate is satisfied of the matters referred to in section 11(1) and has had regard to the matters referred to in section 11(2) ; and (b) specify – (i) the name of the applicant; and (ii) the alleged offence in respect of which the warrant is issued; and (iii) the date on which and the time at which the warrant is issued; and (iv) the kind of surveillance device authorised to be used; and (v) if the warrant authorises the use of a surveillance device on premises, the premises on which the use of the surveillance device is authorised or to which entry is authorised in relation to the use of a surveillance device on other premises; and (vi) if the warrant authorises the use of a surveillance device in or on an object or class of objects, the object or class of objects in or on which the use of the surveillance device is authorised; and (vii) 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); and (viii) if the warrant authorises the use of a surveillance device in a participating jurisdiction, the participating jurisdiction in which it may be used; and (ix) the period during which the warrant is in force, being a period not exceeding 90 days; and (x) the name of the law enforcement officer primarily responsible for executing the warrant; and (xi) any conditions subject to which premises may be entered, or a surveillance device may be used, under the warrant; and (xii) the time within which a report in respect of the warrant must be made to the Supreme Court or magistrate under section 29 . (2) In the case of a warrant referred to in subsection (1)(b)(vii) , if the identity of the person is unknown, the warrant must state that fact. (3) A warrant must be signed by the person issuing it and include their name. (4) If the Supreme Court or a magistrate issues a warrant on a remote application – (a) the Supreme Court or 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 recorded and kept by the Supreme Court or magistrate; and (b) the Supreme Court or magistrate must provide the applicant with a signed copy of the warrant as soon as practicable. 13. 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 specified premises; (b) the use of a surveillance device in or on a specified object or class of objects; (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. (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 the specified premises; and (ii) the entry, by force if necessary, onto the premises, or other specified premises adjoining or providing access to the premises, 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 any premises where the object, or an object of the class, is reasonably believed to be or is likely to be, or other premises adjoining or providing access to those premises, 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 premises where the person is reasonably believed to be or likely to be; and (ii) the entry, by force if necessary, onto the premises referred to in subparagraph (i) or subsection (3) . (3) Each surveillance device 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 temporary removal of an object from any place where it is situated for the purpose of the installation, maintenance or retrieval of the surveillance device or enhancement equipment and the return of the object to that place or another appropriate place; and (d) the breaking open of anything for the purpose of the installation, maintenance or retrieval of the surveillance device or enhancement equipment; and (e) the connection of the device or equipment to an electricity supply system and the use of electricity from that system to operate the surveillance device or enhancement equipment; and (f) the connection of the surveillance device or enhancement equipment to any object or system that may be used to transmit information in any form and the use of that object or system in connection with the operation of the device or equipment; and (g) the provision of assistance or technical expertise to the law enforcement officer primarily responsible for executing the warrant in the installation, use, maintenance or retrieval of the surveillance device or enhancement equipment. (4) 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. (5) 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. (6) This section applies to a warrant subject to any conditions specified in the warrant. (7) Nothing in this section authorises the doing of anything for which a warrant would be required under the Telecommunications (Interception) Act 1979 of the Commonwealth. 14. 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 the 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) the Supreme Court, if the warrant was issued by a judge or the extension or variation of the terms of the warrant was to authorise the investigation into a relevant offence that is being, will be or is likely to be conducted wholly or partly in a participating jurisdiction; or (b) a magistrate, if the warrant was issued by a magistrate. (3) Sections 9 and 10 apply, with any necessary changes, to an application under this section as if it were an application for the warrant. (4) The Supreme Court or magistrate may grant an application, subject to any conditions he or she thinks fit, if satisfied that the matters referred to in section 11(1) still exist, having regard to the matters in section 11(2) . (5) If the Supreme Court or magistrate grants the application, the Supreme Court or magistrate must endorse the new expiry date or the other varied term on the original warrant. (6) An application may be made under this section more than once. 15. 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) the Supreme Court, if the Supreme Court issued the warrant or the extension or variation of the warrant; or (b) a magistrate, if a magistrate issued the warrant. (2) The Supreme Court or a magistrate may revoke a surveillance device warrant after receiving a report under section 29 in respect of the warrant. (3) The Supreme Court or magistrate who revokes a warrant must give notice of the revocation to the chief officer of the law enforcement agency of which the law enforcement officer to whom the warrant was issued is a member. (4) If the chief officer is notified that the warrant has been revoked, he or she must take the steps necessary to ensure that use of the surveillance device authorised by the warrant is discontinued immediately. 16. Discontinuance of use of surveillance device under warrant (1) This section applies if a surveillance device warrant is issued to a law enforcement officer of a law enforcement agency. (2) If the law enforcement officer to whom the warrant is issued, or who is primarily responsible for executing the warrant, believes that use of a surveillance device under the warrant is no longer necessary for the purpose of enabling evidence to be obtained of the commission of the relevant offence or the identity or location of the offender, he or she must inform the chief officer of the law enforcement agency immediately. (3) If the chief officer of the law enforcement agency is satisfied that the use of a surveillance device under the warrant is no longer necessary for the purpose of enabling evidence to be obtained of the commission of the relevant offence or the identity or location of the offender, the chief officer must take the steps necessary to ensure that use of the surveillance device authorised by the warrant is discontinued as soon as practicable. Division 3 - Retrieval warrants 17. Application for 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 an object, under a surveillance device warrant or a surveillance device warrant issued under a corresponding law and which the law enforcement officer on reasonable grounds suspects or believes is still on those premises or in or on that object, or on other premises or in or on another object. (2) The application may be made to – (a) the Supreme Court in the case of a device installed under a warrant issued by the Supreme Court; or (b) a magistrate in the case of a device installed under a warrant issued by a magistrate. (3) Subject to this section, an application must be supported by an affidavit setting out the grounds on which the warrant is sought. (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 inf