Surveillance Devices Act 1998 (WA)

Western Australia Surveillance Devices Act 1998 Western Australia Surveillance Devices Act 1998 Contents Part 1 — Preliminary 1. Short title 2 2. Commencement 2 3. Interpretation 2 4. Application 8 4AA. Authority required for some investigations 8 4A. State police working for Australian Crime Commission 8 Part 2 — Regulation of installation and use of surveillance devices 5. Regulation of use, installation and maintenance of listening devices 9 6. Regulation of use, installation and maintenance of optical surveillance devices 10 7. Regulation of use, installation and maintenance of tracking devices 12 8. Technical assistance 13 Part 3 — Restriction on publication or communication of private conversations and activities 9. Prohibition of publication or communication of private conversations or activities 14 10. Admissibility in criminal proceedings of information inadvertently obtained 16 11. Presumption as to evidence obtained under warrant or emergency authorisation 17 Part 4 — Warrants and emergency authorisations Division 1 — Judicial warrants 12. Interpretation of "court" 18 13. Warrants for use etc. of surveillance devices 18 14. Warrants for maintenance and retrieval of certain tracking devices 22 15. Applications for warrants 23 16. Radio/telephone applications for warrants 25 17. Warrants issued following radio/telephone applications 26 18. Restriction on further radio/telephone applications 27 18A. Enhanced powers concerning surveillance devices 28 19. Extension of warrants 29 Division 2 — Emergency authorisations 20. Emergency use of surveillance devices 29 21. Emergency authorisations 31 22. Retrieval of surveillance devices installed under emergency authorisations 34 Division 3 — Confidentiality 23. Confidentiality 35 Part 5 — Use of surveillance devices in the public interest Division 1 — General 24. Interpretation 36 25. Unlawful act 36 Division 2 — Use of listening devices and optical surveillance devices in the public interest 26. Use of listening devices in the public interest 36 27. Use of optical surveillance devices in the public interest 37 Division 3 — Emergency use of listening devices and optical surveillance devices in the public interest 28. Emergency use of listening devices in the public interest 38 29. Emergency use of optical surveillance devices in the public interest 38 30. Report to a judge 38 Division 4 — Publication or communication in the public interest 31. Order allowing publication or communication in the public interest 40 32. Application for a publication order 41 33. Confidentiality 41 Part 6 — Offences and enforcement provisions 34. Possession of surveillance device for unlawful use 43 35. Unlawful removal or retrieval of surveillance device 43 36. Power to search 43 37. Report of finding surveillance device 44 38. Time limit for prosecutions 45 40. Forfeiture 45 Part 7 — Miscellaneous 41. Dealing with records obtained by surveillance devices 47 42. Exemption from personal liability 48 43. Annual reports 48 43A. Reports by Royal Commissions 50 44. Regulations 50 Notes Compilation table 52 Other notes 53 Defined terms Western Australia Surveillance Devices Act 1998 An Act to regulate the use of listening devices in respect of private conversations, optical surveillance devices in respect of private activities, and tracking devices in respect of the location of persons and objects, to repeal and replace the Listening Devices Act 1978 1, to amend the Evidence Act 1906 2 with regard to transcripts of recordings, and for connected purposes. Part 1 — Preliminary 1. Short title This Act may be cited as the Surveillance Devices Act 1998. 2. Commencement This Act comes into operation on such day as is, or days as are respectively, fixed by proclamation. 3. Interpretation (1) In this Act, unless the contrary intention appears — Attorney General means the Attorney General of the State or, where there is a vacancy in the office of Attorney General, the Minister for Justice of the State; Australian Crime Commission means the Australian Crime Commission established by the Australian Crime Commission Act 2002 of the Commonwealth; authorised person means — (a) in the case of the police force of the State — (i) the Commissioner of Police; (ii) a Deputy Commissioner of Police; and (iii) an Assistant Commissioner of Police; (aa) in the case of the Corruption and Crime Commission, an officer of the Corruption and Crime Commission authorised for that purpose by the Commission; (b) in the case of a designated Commission, a person authorised for the purpose by the designated Commission; and (c) in the case of the Australian Crime Commission, a person authorised for the purpose by the Chair of the Board of the Australian Crime Commission; building includes any structure; Chief Magistrate means the Chief Magistrate of the Magistrates Court; composite emergency authorisation means an emergency authorisation issued under Division 2 of Part 4 in respect of more than one kind of surveillance device or a surveillance device that has more than one kind of function; composite warrant means a warrant issued under section 13(10) or 22(4) in respect of more than one kind of surveillance device or a surveillance device that has more than one kind of function; connected device means an instrument, apparatus, or equipment that is not a surveillance device but is ancillary to the use or installation of a surveillance device and is capable of being used directly or indirectly in connection with, as the result of, or for the purposes of the commission of an offence under this Act; Corruption and Crime Commission has the meaning given to "Commission" in section 3 of the Corruption, Crime and Misconduct Act 2003; designated Commission means a Royal Commission under the Royal Commissions Act 1968 to which, by the terms of appointment or in an instrument made by the Governor, this Act is expressly declared to apply; emergency authorisation means an authorisation issued by an authorised person to a member of the police force of the State, an officer of the Corruption and Crime Commission, an officer of a designated Commission or a member of the staff of the Australian Crime Commission under section 21; external indictable drug offence means an offence under the law of a State (other than Western Australia) or a Territory that corresponds to an offence of a kind referred to in the definition of "indictable drug offence"; indictable drug offence means an offence under section 6(1), 7(1), 33(1)(a), 33(2)(a) or 33(3)(a) of the Misuse of Drugs Act 1981; law enforcement officer means — (a) a member of the police force of the State or of another State or a Territory; (aa) an officer of the Corruption and Crime Commission; (b) an officer of a designated Commission; (c) a member of the staff of the Australian Crime Commission who is a member of the Australian Federal Police or of the police force of a State or Territory; (d) a person who is a member of such other class of persons as is prescribed, being persons who are officers or employees of a department, authority or agency of the State or of another State or a Territory; listen to includes hear; listening device means any instrument, apparatus, equipment, or other device capable of being used to record, monitor or listen to a private conversation or words spoken to or by any person in private 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; listening device warrant means a warrant issued under Part 4 by a judge to authorise the installation, use, maintenance, and retrieval of a listening device; maintain, in relation to a surveillance device, includes adjust, repair, reposition, and service; member of the staff of the Australian Crime Commission has the meaning given to the term "member of the staff of the ACC" in section 4(1) of the Australian Crime Commission Act 2002 of the Commonwealth as extended by section 3(3) of the Australian Crime Commission (Western Australia) Act 2004; officer of a designated Commission means — (a) a person appointed by the Attorney General to assist a designated Commission; or (b) any other person appointed, employed, seconded or engaged to assist a designated Commission; officer of the Corruption and Crime Commission has the meaning given to "officer of the Commission" in section 3 of the Corruption, Crime and Misconduct Act 2003; optical surveillance device means any instrument, apparatus, equipment, or other device capable of being used to record visually or observe a private activity, but does not include spectacles, contact lenses or a similar device used by a person with impaired sight to overcome that impairment; optical surveillance device warrant means a warrant issued under Part 4 by a judge to authorise the installation, use, maintenance, and retrieval of an optical surveillance device; party means — (a) in relation to a private conversation — (i) a person by or to whom words are spoken in the course of the conversation; or (ii) a person who, with the express or implied consent 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; and (b) in relation to a private activity — (i) a person who takes part in the activity; or (ii) a person who, with the express or implied consent of any of the persons taking part in the activity, observes or records the activity; premises includes all or part of any land, building, aircraft or vehicle, and any place whether built on or not; principal party means — (a) in relation to a private conversation, a person by or to whom words are spoken in the course of the conversation; and (b) in relation to a private activity, a person who takes part in the activity; private activity means any activity carried on in circumstances that may reasonably be taken to indicate that any of the parties to the activity desires it to be observed only by themselves, but does not include an activity carried on in any circumstances in which the parties to the activity ought reasonably to expect that the activity may be observed; private conversation means any conversation carried on in circumstances that may reasonably be taken to indicate that any of the parties to the conversation desires it to be listened to only by themselves, but does not include a conversation carried on in any circumstances in which the parties to the conversation ought reasonably to expect that the conversation may be overheard; record, in relation to a private conversation, includes a statement prepared from such a record and to record includes visual and sound recording; report, in relation to a private conversation, includes a report of the substance, meaning or purport of the conversation; surveillance device means a listening device, an optical surveillance device or a tracking device; surveillance device (retrieval) warrant means a warrant issued under section 22 by a judge to authorise the retrieval of a surveillance device that has been attached or installed in accordance with an emergency authorisation issued under section 21; tracking device means any instrument, apparatus, equipment, or other device capable of being used to determine the geographical location of a person or object; tracking device (maintenance/retrieval) warrant means a warrant issued under section 14 to authorise the maintenance or retrieval or the maintenance and retrieval of a tracking device or devices that have been attached or installed on a vehicle situated in a public place by a person referred to in section 7(2)(a); tracking device warrant means a warrant issued under Part 4 to authorise the attachment, installation, use, maintenance and retrieval of a tracking device; vehicle includes a vessel; warrant means a warrant issued under Part 4. (2) An instrument, apparatus, equipment, or other device is to be regarded for the purposes of this Act as a listening device, an optical surveillance device, a tracking device, or more than one of those devices, if it is capable of performing the function of such a device or devices as described in the definitions in subsection (1). (3) For the purposes of a designated Commission this Act operates as if — (a) a reference in section 5(3)(b) or 6(3)(b)(ii) to a suspected criminal offence included a reference to suspected misconduct; (b) a reference in section 13(1)(a) or (b), (2)(a) or (8)(a) or 17(1)(a) or (b) to an offence included a reference to an act of misconduct; and (c) a reference in section 13(1)(b), (2)(a) or (8)(a) or 17(1)(b) to a suspected offence included a reference to suspected misconduct. (4) In subsection (3) — misconduct has the meaning given to that term by section 4 of the Corruption, Crime and Misconduct Act 2003. [Section 3 amended: No. 78 of 2003 s. 74; No. 59 of 2004 s. 141; No. 62 of 2004 s. 9(3); No. 74 of 2004 s. 72(2); No. 30 of 2006 s. 16; No. 35 of 2014 s. 39.] 4. Application (1) Subject to subsection (2), this Act binds the Crown in right of the State and, so far as the legislative power of the Parliament provides, in all its other capacities. (2) This Act does not apply to the activities and operations of a prescribed Commonwealth agency, instrumentality or body. 4AA. Authority required for some investigations This Act is subject to the Criminal Appeals Act 2004 section 46C. [Section 4AA inserted: No. 9 of 2012 s. 11.] 4A. State police working for Australian Crime Commission A power under this Act may be exercised in a person's capacity as a member of the police force of the State even if the person is also a member of the staff of the Australian Crime Commission. [Section 4A inserted: No. 35 of 2001 s. 4; amended: No. 74 of 2004 s. 72(3).] [4B. Expired 16 Apr 2004 3.] Part 2 — Regulation of installation and use of surveillance devices 5. Regulation of use, installation and maintenance of listening devices (1) Subject to subsections (2) and (3), a person shall not install, use, or maintain, or cause to be installed, used, or maintained, a listening device — (a) to record, monitor, or listen to a private conversation to which that person is not a party; or (b) to record a private conversation to which that person is a party. Penalty: (a) for an individual: $5 000 or imprisonment for 12 months, or both; (b) for a body corporate: $50 000. (2) Subsection (1) does not apply to — (a) the installation, use, or maintenance of a listening device in accordance with a listening device warrant issued under Part 4; (b) the installation, use, or maintenance of a listening device in accordance with an emergency authorisation issued under Part 4; (c) the installation, use, or maintenance of a listening device in accordance with a law of the Commonwealth; (d) the use of a listening device in accordance with Part 5; or (e) the use of a listening device resulting in the unintentional hearing of a private conversation. (3) Subsection (1)(b) does not apply to the installation, use, or maintenance of a listening device by or on behalf of a person who is a party to a private conversation if — (a) that installation, use or maintenance is carried out in the course of that person's duty as a law enforcement officer; (b) that installation, use or maintenance is carried out by that person as instructed or authorised by a law enforcement officer in the course of an investigation into a suspected criminal offence; (c) each principal party to the private conversation consents expressly or impliedly to that installation, use, or maintenance; or (d) a principal party to the private conversation consents expressly or impliedly to that installation, use, or maintenance and the installation, use, or maintenance is reasonably necessary for the protection of the lawful interests of that principal party. 6. Regulation of use, installation and maintenance of optical surveillance devices (1) Subject to subsections (2) and (3), a person shall not install, use, or maintain, or cause to be installed, used, or maintained, an optical surveillance device — (a) to record visually or observe a private activity to which that person is not a party; or (b) to record visually a private activity to which that person is a party. Penalty: (a) for an individual: $5 000 or imprisonment for 12 months, or both; (b) for a body corporate: $50 000. (2) Subsection (1) does not apply to — (a) the installation, use, or maintenance of an optical surveillance device in accordance with a warrant issued under Part 4; (b) the installation, use, or maintenance of an optical surveillance device in accordance with an emergency authorisation issued under Part 4; (c) the installation, use, or maintenance of an optical surveillance device in accordance with a law of the Commonwealth; (d) the use of an optical surveillance device in accordance with Part 5; or (e) the use of an optical surveillance device resulting in the unintentional recording or observation of a private activity. (3) Subsection (1)(b) does not apply to the installation, use, or maintenance of an optical surveillance device by or on behalf of a person who is a party to a private activity if — (a) each principal party to the private activity consents expressly or impliedly to that installation, use, or maintenance; or (b) a principal party to the private activity consents expressly or impliedly to that installation, use, or maintenance and the installation, use, or maintenance is — (i) carried out in the course of that person's duty as a law enforcement officer; (ii) carried out by that person as instructed or authorised by a law enforcement officer in the course of an investigation into a suspected criminal offence; or (iii) reasonably necessary for the protection of the lawful interests of that principal party. 7. Regulation of use, installation and maintenance of tracking devices (1) Subject to subsections (2) and (3), a person shall not attach, install, use, or maintain, or cause to be attached, installed, used, or maintained, a tracking device to determine the geographical location of a person or object without the express or implied consent of that person or, in the case of a device used or intended to be used to determine the location of an object, without the express or implied consent of the person in possession or having control of that object. Penalty: (a) for an individual: $5 000 or imprisonment for 12 months, or both; (b) for a body corporate: $50 000. (2) Subsection (1) does not apply to — (a) the attachment, installation or maintenance by a law enforcement officer of a tracking device on a vehicle that is situated in a public place nor the use of a tracking device that has been so attached or installed where the attachment, installation, maintenance, or use is carried out by a person in the course of that person's duty as a law enforcement officer; (b) the attachment, installation, use, or maintenance of a tracking device in accordance with a warrant issued under Part 4; (c) the attachment, installation, use, or maintenance of a tracking device in accordance with an emergency authorisation granted under Part 4; (d) the attachment, installation, use or maintenance of a tracking device in prescribed circumstances; or (e) the attachment, installation, use, or maintenance of a tracking device in accordance with a law of the Commonwealth. (3) Subsection (1) does not apply to the use of a tracking device by a person in the course of that person's duty as a law enforcement officer where the device has not been attached or installed or caused to be attached or installed by that person or by a person acting on behalf of that person. 8. Technical assistance If a law enforcement officer is authorised by or under this Act to install, attach, use, maintain or retrieve a surveillance device that authorisation extends to any person who provides practical assistance or technical expertise to the law enforcement officer in that installation, attachment, use, maintenance or retrieval. Part 3 — Restriction on publication or communication of private conversations and activities 9. Prohibition of publication or communication of private conversations or activities (1) Subject to subsection (2), a person shall not knowingly publish or communicate a private conversation, or a report or record of a private conversation, or a record of a private activity that has come to the person's knowledge as a direct or indirect result of the use of a listening device or an optical surveillance device. Penalty: (a) for an individual: $5 000 or imprisonment for 12 months, or both; (b) for a body corporate: $50 000. (2) Subsection (1) does not apply — (a) where the publication or communication is made — (i) to a party to the private conversation or the private activity; (ii) with the express or implied consent of each principal party to the private conversation or private activity; (iii) to any person or persons authorised for the purpose by the Commissioner of Police, the Corruption and Crime Commission or the Chair of the Board of the Australian Crime Commission; (iiia) to a designated Commission or to any person or persons authorised for the purpose by a designated Commission; (iv) by a law enforcement officer to the Director of Public Prosecutions of the State or of the Commonwealth or an authorised representative of the Director of Public Prosecutions of the State or of the Commonwealth; (v) in the course of the duty of the person making the publication or communication; (vi) for the protection of the lawful interests of the person making the publication or communication; (vii) in the case of the use of a listening device or an optical surveillance device in the circumstances referred to in section 5(3)(d) or 6(3)(b)(iii), as the case requires, in the course of reasonable action taken to protect the lawful interests of the principal party to the conversation or activity who consented to the use of the device; (viii) in accordance with Part 5; or (ix) in the course of any legal proceedings; (b) where the publication or communication is made to a member of the police force of the State or of another State or a Territory in connection with — (i) an indictable drug offence or an external indictable drug offence; or (ii) any other indictable matter of such seriousness as to warrant the publication or communication; or (c) where the person making the publication or communication believes on reasonable grounds that it was necessary to make that publication or communication in connection with an imminent threat of serious violence to persons or of substantial damage to property. (3) Subsection (2) only provides a defence if the publication or communication — (a) is not more than is reasonably necessary — (i) in the public interest; (ii) in the performance of a duty of the person making the publication or communication; or (iii) for the protection of the lawful interests of the person making the publication or communication; (b) is made to a person who has, or is believed on reasonable grounds by the person making the publication or communication to have, such an interest in the private conversation or activity as to make the publication or communication reasonable under the circumstances in which it is made; (c) is made by a person who used the listening device to record, monitor or listen to that conversation or an optical surveillance device to record or observe that private activity in accordance with a warrant or an emergency authorisation issued under Part 4; or (d) is made by an authorised person employed in connection with the security of the Commonwealth under an Act of the Commonwealth relating to the security of the Commonwealth. [Section 9 amended: No. 78 of 2003 s. 74; No. 74 of 2004 s. 72(4); No. 30 of 2006 s. 17.] 10. Admissibility in criminal proceedings of information inadvertently obtained (1) Where a private conversation or a private activity has inadvertently or unexpectedly come to the knowledge of a person as a direct or indirect result of the use of a listening device or an optical surveillance device in accordance with a warrant or an emergency authorisation issued under Part 4 — (a) evidence of the conversation or activity; and (b) evidence obtained as a consequence of the conversation or activity so coming to the knowledge of that person, may be given by that person in any criminal proceeding even if the warrant or emergency authorisation was not issued for the purpose of allowing that evidence to be obtained. (2) Subsection (1) does not render any evidence admissible if the application upon which the warrant or emergency authorisation was issued was not, in the opinion of the court, made in good faith. 11. Presumption as to evidence obtained under warrant or emergency authorisation Where evidence of a private conversation or a private activity that is alleged to have been obtained as a direct or indirect result of the use of a listening device or an optical surveillance device under a warrant or an emergency authorisation is given by a member of the police force of the State, an officer of the Corruption and Crime Commission, an officer of a designated Commission or a member of the staff of the Australian Crime Commission in any civil or criminal proceeding, it shall be presumed in that proceeding unless the contrary is proved that — (a) the application upon which that warrant or emergency authorisation was issued was made in good faith; and (b) the evidence was properly obtained under and in accordance with that warrant or emergency authorisation. [Section 11 amended: No. 78 of 2003 s. 74; No. 74 of 2004 s. 72(3); No. 30 of 2006 s. 18.] Part 4 — Warrants and emergency authorisations Division 1 — Judicial warrants 12. Interpretation of "court" In this Part other than in section 17(6) or 23(2) — court means — (a) in relation to all matters concerning a listening device warrant or an optical surveillance device warrant to authorise the surveillance of a private conversation or a private activity and in relation to all matters concerning a surveillance device (retrieval) warrant, a judge; and (b) in relation to all matters concerning a tracking device warrant or a tracking device (maintenance/retrieval) warrant, a judge or a magistrate. 13. Warrants for use etc. of surveillance devices (1) A court may issue a listening device warrant, an optical surveillance device warrant or a tracking device warrant, if the court is satisfied, upon an application made in accordance with section 15, that there are reasonable grounds for believing that — (a) an offence has been or may have been, is being or is about to be, or is likely to be, committed; and (b) the use of a listening device, an optical surveillance device, or a tracking device would be likely to assist an investigation into that offence or suspected offence, or to enable evidence to be obtained of the commission of that offence, or the identity or location of the offender. (2) When considering an application for a listening device warrant, an optical surveillance device warrant or a tracking device warrant, the court must have regard to — (a) the nature of the offence or suspected offence in respect of which the warrant is sought; (b) the extent to which the privacy of any person is likely to be affected by the use of a surveillance device under the warrant; (c) the extent to which evidence or information is likely to be obtained by methods of investigation not involving the use of a surveillance device; (d) the intelligence value and the evidentiary value of any information sought to be obtained; (e) any other warrants sought or issued under this Act or the Listening Devices Act 1978 4 in connection with the same matter; and (f) the public interest. (3) A court, when issuing a warrant under this Division, may authorise the use of a surveillance device in, on or at specified premises, and when doing so, the court shall by the warrant authorise — (a) the installation, maintenance, and retrieval of the device; and (b) the entry, by force if necessary, into or onto the specified premises, or other specified premises adjoining or providing access to the specified premises, for any of the purposes referred to in paragraph (a). (4) A court, when issuing a warrant under this Division, may authorise the use of a surveillance device in or on a specified object, and when doing so, the court shall by the warrant authorise — (a) the installation, maintenance, and retrieval of the device; and (b) the entry, by force if necessary, into or onto premises where the object 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 paragraph (a). (5) A court, when issuing a warrant under this Division, may authorise the use of a surveillance device in respect of the private conversations, private activities or geographical location of a specified person or a person whose identity is unknown and when doing so, the court shall by the warrant authorise — (a) the installation, maintenance, and retrieval of the device into or onto premises where the person is reasonably believed to be or likely to be; and (b) the entry, by force if necessary, into or onto premises referred to in paragraph (a), or other premises adjoining or providing access to those premises, for any of the purposes referred to in paragraph (a). (6) A court, when issuing a warrant under this Division, may authorise the connection of a surveillance device to an electricity supply system and the use of electricity from that system to operate the device. (7) A court, when issuing a tracking device warrant, may authorise the temporary removal of a vehicle from specified premises for the purpose of the attachment, installation, maintenance or retrieval of a tracking device and the return of the vehicle to those premises. (8) A warrant issued under this Division must specify — (a) except in the case of a tracking device (maintenance/retrieval) warrant, the offence or suspected offence in respect of which the warrant is issued; (b) where practicable in the case of a listening device warrant or an optical surveillance device warrant, the name of any person whose conversation or activity may be monitored, recorded, listened to, or observed by the use of the listening device or optical surveillance device in accordance with the warrant; (c) where practicable in the case of a listening device warrant or an optical surveillance device warrant and except in the case of a warrant issued under subsection (5) in respect of a specified person or a person whose identity is unknown, the location of the premises in, on or at which a device is to be installed and conversations or activities monitored, recorded, listened to or observed by the use of the listening device or optical surveillance device in accordance with the warrant; (d) where practicable in the case of a tracking device warrant, the name of any person or a brief description of any object whose geographical location is sought to be determined by the tracking device; (e) in the case of a warrant issued under subsection (4), a brief description of the object in or on which a surveillance device may be used; (f) the period that the warrant is to be in force, being in every case a period not longer than 90 days; (g) that the warrant may be used at any time of the day or night within the period that it is in force; (h) except in the case of a tracking device (maintenance/retrieval) warrant, that where practicable the surveillance device should be retrieved or rendered inoperable during the period that the warrant is in force; (i) the name of the person to whom the warrant is issued, and, where the warrant is obtained on behalf of another person, the name of that other person; and (j) any conditions or restrictions subject to which premises may be entered or a surveillance device may be used under the warrant. (9) A warrant under this Division authorises action in accordance with its authority by the person to whom it is issued, any other person on whose behalf it was obtained and any other person who is properly engaged in the investigation. (10) A court may issue one composite warrant having effect in accordance with its terms in respect of more than one kind of surveillance device or a surveillance device that has more than one kind of function so long as the court has the requisite jurisdiction in respect of each element of the warrant. (11) A warrant under this Division that refers to a surveillance device is to be taken to refer to suc