Surveillance Devices Bill

Introduction and First Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Housing and Urban Development, Minister for Industrial Relations, Minister for Child Protection Reform) (11:25): Obtained leave and introduced a bill for an act to make provision relating to the use of surveillance devices; to provide for cross-border recognition of warrants relating to surveillance devices; to repeal the Listening and Surveillance Devices Act 1972; to make related amendments to the Criminal Investigation (Covert Operations) Act 2009 and the Director of Public Prosecutions Act 1991; and for other purposes. Read a first time.

Second Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Housing and Urban Development, Minister for Industrial Relations, Minister for Child Protection Reform) (11:26): I move:

That this bill be now read a second time.

The Surveillance Devices Bill 2015 overhauls and brings up to date with modern technologies the law dealing with electronic surveillance. In general terms, the bill proposes a replacement to the current Listening and Surveillance Devices Act 1972.

The last amendments to the Listening and Surveillance Devices Act 1972 were made by the Listening Devices (Miscellaneous) Amendment Act 1998. Sixteen years have passed since the act was reformed, and much has changed, not least developments in electronic surveillance and methods of intruding into privacy. South Australia has fallen behind the rest of the country and, as such, the legislation is in urgent need of revision.

I seek leave to have the remainder of the second reading explanation inserted in Hansard without my reading it.

Leave granted.

On 5 April, 2002, the Council of Australian Governments (COAG) held a special meeting on Terrorism and Multi-Jurisdictional Crime. One outcome of that meeting was that Leaders agreed:

To legislate through model laws for all jurisdictions and mutual recognition for a national set of powers for cross-border investigations covering controlled operations and assumed identities legislation; electronic surveillance devices; and witness anonymity. Legislation to be settled within 12 months.

The task of developing these model laws was given to a task force known as the national Joint Working Group (JWG) established by then Ministerial Councils (the Standing Committee of Attorneys-General and the Australian Police Ministers Council) and consisting of representatives of both bodies. The JWG published a Discussion Paper in February 2003 that discussed and presented draft legislation on all four topics (controlled operations and assumed identities legislation, witness anonymity, and electronic surveillance devices) and received 19 submissions nationally. A Final Report was published in November 2003.

The first three topics were dealt with by what has become the Criminal Investigation (Covert Operations) Act 2009. So far as the subject of electronic surveillance was concerned, no national agreement was reached on a model domestic law, and so the agreed model related only to cross-border recognition. Interstate, New South Wales, Victoria, Queensland and Western Australia have all passed their respective versions of electronic surveillance legislation. Since 2009, Police have taken the view that the existing South Australian legislation was long overdue for overhaul.

The Surveillance Devices Bill 2012 was introduced into Parliament in September 2012 and passed the House of Assembly. It then stalled in the Legislative Council. The Opposition and cross-benchers voted to refer the provisions of the Bill that were not referable to police powers to the Legislative Review Committee. The ensuing process took over 12 months. Strongly held positions from various interest groups were ventilated and debated at length.

The Legislative Review Committee reported on 13 November 2013. The Government placed on file amendments designed to implement the recommendations of the Committee on 26 November. Unfortunately, the Bill was not brought on for debate, Parliament was prorogued and the Bill lapsed.

The Surveillance Devices Bill 2014 was introduced in the Legislative Council on 5 June 2014. The views of various interest groups were again debated at length. There was resistance from the Opposition and cross-benchers to the proposed amendments to regulate the communication or publication of information or material derived from the use of a listening device or optical surveillance device where the device was used in the public interest. This resistance arose from the requirement that the communication or publication of such information obtained in the public interest could only occur with the order of a court. While these concerns were addressed by amendments to the Bill that allowed media organisations to communicate and publish information without an order of a court, the Opposition continued to oppose the Bill as a result of continued pressure from the media. These amendments have been retained and expanded upon in the new Bill.

The Surveillance Devices Bill 2014 was also strongly opposed by groups who erroneously interpreted the Bill as being similar to legislation already in force in other parts of the world that prohibit the use of covert devices to document activities relating to agricultural facilities or factory farming, despite the clear public interest exception that the Bill contemplated.

The Surveillance Devices Bill 2014 was negatived at its third reading in the Legislative Council on 23 September 2014.

The Surveillance Devices Bill 2015 revises the position on the regulation of communication and publication of information and material derived from the use of listening or optical surveillance devices in the public interest. The powers granted under the Bill to law enforcement agencies remain unchanged from the Surveillance Devices Bill 2014. There was little controversy surrounding the proposed amendments to police powers during debate on the Bill in 2014.

This Bill contains the recommended provisions allowing for cross-border recognition of surveillance device warrants. So far as South Australia is concerned, this means that the law of this State will regard as validly issued those surveillance device warrants of a corresponding Australian jurisdiction declared by regulation. It is up to those other Australian jurisdictions to pass laws recognising our warrants for the purposes of the law of their State. This is nationally regarded as important for the often stated and obviously true reason that criminals do not respect State and Territory borders. The measure is a target in, for example, the National Organised Crime Response Plan.

In addition, a review of the existing Act, in close consultation with South Australia Police, has resulted in extensive proposals for amendments. These are:

1. Under current law, an urgent warrant application is done by telephone or fax application to a Supreme Court judge at any time of the day or night. In practice, the Supreme Court rosters judges for this purpose. South Australia Police says that the process takes about two hours, during which no action can be taken in urgent situations. The alternative is to allow emergency authorisation for urgent situations to be made by a senior police officer. Many Australian jurisdictions have this procedure and it is part of the JWG model. The Commonwealth has accepted the JWG model. The Bill proposes a similar procedure including, notably, a requirement that police seek judicial confirmation of the emergency warrant within two business days after the emergency warrant is granted.

2. The Commonwealth provisions dealing with urgent or emergency warrant applications restrict the procedure to certain kinds of offences. The warrant applications are limited to where:

an imminent risk of serious violence to a person or substantial damage to property exists; and

and the use of a surveillance device is immediately necessary for the purpose of dealing with that risk; and

and the circumstances are so serious and the matter is of such urgency that the use of a surveillance device is warranted; and

it is not practicable in the circumstances to apply for a surveillance device warrant.

However, neither current South Australian law nor Commonwealth law allows for explicit emergency authorisation for serious drug offences and this defect will be remedied with similar pre-conditions.

3. New technology means that a tracking device can be attached to a vehicle in a public place or a place under the control of police (such as a yard for keeping seized vehicles). This will sometimes have to be done quickly before a vehicle decamps. In such a scenario, attaching a surveillance device with tracking capability will be permitted without a warrant so long as it is non-intrusive and does not draw power from the vehicle. Other Australian legislation deals with this situation in different and inconsistent ways. The police will be allowed to use subterfuge to covertly attach such a device to a vehicle. For example, the police might temporarily move the car so as to attach the device out of the public eye.

4. The JWG model contains special provision for 'remote applications' to deal with instances where physical remoteness means that it is impractical to make a warrant application. The Commonwealth legislation adopts the model. This is a commonsense exception to the usual requirement that a warrant be sought by personal application and is provided for by the Bill.

5. The JWG model contains provision for 'specified person warrants'. The point of this is to allow a warrant to be brought for the surveillance of a specific person, wherever he or she may be, instead of the usual warrant allowing the surveillance of a particular place. The Bill contains provisions designed to allow for this sensible proposal.

6. Material obtained by use of listening or other surveillance devices installed pursuant to a warrant is prohibited from being communicated or published unless it falls within one of the exceptions in s 6AB of the current Act. Obviously, material must be used for the purposes of a criminal investigation and that remains and will remain to be the most common use of the material. However, law enforcement today has tools available to it that move beyond the simple arena of the criminal justice system. The Government can and will pursue criminals through civil legislative remedies, such as those contained in the Criminal Assets Confiscation Act 2005, Serious and Organised Crime (Control) Act 2008 and the Serious and Organised Crime (Unexplained Wealth) Act 2009. The Bill provides that the output from listening and other surveillance devices installed pursuant to a warrant must be made available for these crime-fighting purposes.

7. The judges of the Supreme Court (who are the issuing authorities under the Act) have interpreted the Act so that all people authorised to exercise powers under the warrant are specified in the warrant. South Australia Police argues that the specification of police personnel in the warrant poses potential security risks—risk of retribution from targets of the warrants because of the intrusive nature of the work they perform. There has been extensive consultation with the former Chief Justice on this issue. The former Chief Justice agreed that an amendment to provide for a degree of anonymity was acceptable—using a code on the warrant instead—but was concerned about who will hold the key to the code. The code names scheme is in the Bill. The holder of the key is not specified in the Bill—it will be up to the court to determine how it will deal with the matter.

8. There are other more minor changes proposed. All are consistent with the JWG model.

(a) The Bill authorises the use of a surveillance device on specified premises; in or on a specified object or class of object; or, in respect of the conversations, activities or location of a specified person or a person whose identity is unknown.

(b) The definition of 'premises' is expanded in line to include land; and a building or vehicle (includes an aircraft or vessel) ; and a part of a building or vehicle; and any place, whether built on or not.

(c) The definition of 'surveillance device' is amended to mean a data surveillance device; a listening device; an optical surveillance device; or a tracking device; or a device that is a combination of any two or more of the above devices; or a device of a kind prescribed by regulations.

(d) Extensive oversight and reporting provisions are proposed in order to safeguard the public interest as best as can be managed without jeopardising criminal investigations and other sensitive police information. In particular, there has been no watering down of current requirements.

The Bill contains amendments that were recommended by the Legislative Review Committee in its 2013 report. There are amendments that are designed to accommodate the concerns expressed by security and investigation agents representatives during debate on the previous Bill, increased protection for house-holders against intrusion on their privacy by optical surveillance devices overseeing private property, and a loosening of restrictions on the use of surveillance devices together with very detailed regulation of the uses to which information so obtained can be put.

The general ability to use a listening device to record a private conversation if it is in the course of duty of the person, in the public interest or for the protection of the lawful interests of that person in the current s 7(1)(b) of the Act is too broad and ill-defined. It is unsuited to the threats to personal privacy posed by the technological realities of the 21st century. In line with the recommendations of the Legislative Review Committee, the section has been eliminated and more specific and targeted allowances made for lawful use.

The Bill prohibits the installation, use or maintenance of a listening device to overhear, record, monitor or listen to a private conversation except where all principal parties to the conversation provide their consent. There are exceptions where such a listening device is authorised for law enforcement authorities and for security and investigation agents. A further exception exists where the use of the device is reasonably necessary for the protection of the lawful interests of that person, or where the installation, use or maintenance of a listening device is in the public interest.

The installation, use or maintenance of an optical surveillance device is subject to similar restrictions and exceptions. The Bill prohibits the installation, use or maintenance of an optical surveillance device on or in premises to record visually or observe the carrying on of a private activity, without the express or implied consent of each party to the activity. The Bill prohibits trespass onto premises or interference with premises to install, use or maintain an optical surveillance device to capture private activity. 'Private activity' is defined as an activity carried on in circumstances that may reasonably be taken to indicate that a party to the activity desires it to be observed only by the other parties to the activity, or where there is only one party involved, that the person does not desire to be observed by anyone else. Like listening devices, there are exceptions for law enforcement authorities and for security and investigation agents. A further exception exists where the use of the device is reasonably necessary for the protection of the lawful interests of that person, or where the installation, use or maintenance of an optical surveillance device is in the public interest.

The Bill prohibits the use, communication or publication of information or material derived from the use of a listening or optical surveillance device. It creates an offence for the use, communication or publication of information or material derived from the use of a listening device or an optical surveillance device in circumstances where the device was used to protect the lawful interests of a person. There are exceptions to this prohibition that include for investigative of court related purposes, by a media organisation (defined as an organisation that is licenced or authorised under a law of the Commonwealth to engage in broadcasting or datacasting), or in accordance with an order of a judge.

The Bill creates a similar offence provision for the use, communication or publication of information or material derived from the use of a listening device or optical surveillance device in circumstances where the device was used in the public interest except in accordance with an order of a judge. The Bill departs from its 2014 predecessor in providing an exception to the general rule that there must be a court order for:

a media organisation;

information or material that is used, communicated or published to such a media organisation;

the Royal Society for the Protection of Animals (SA) (RSPCA) where issues of animal welfare are concerned; and

information or material that relates to issues of animal welfare that is used, communicated or published to the RSPCA.

The revision to the scope of the public interest exception in the Bill follows the opposition raised in debate in 2014 over a more stringent public interest exception that required as a blanket rule an order of a judge for the use, communication or publication of information or material derived from the use of a listening device or optical surveillance device in the public interest.

The Bill incorporates necessary provisions to take into account the needs of the ICAC.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

3—Interpretation

This clause sets out definitions of words and phrases used for the purposes of this measure.

Part 2—Regulation of installation, use and maintenance of surveillance devices

Division 1—Installation, use and maintenance of surveillance devices

4—Listening devices

This clause provides that, subject to the exceptions set out in the clause and the public interest exception (see clause 6), it is an offence if a person knowingly installs, uses or causes to be used, or maintains, a listening device—

to overhear, record, monitor or listen to a private conversation to which the person is not a party; or

to record a private conversation to which the person is a party.

The maximum penalty for such an offence is $75,000 for a body corporate, and $15,000 or imprisonment for 3 years for a natural person.

5—Optical surveillance devices

This clause provides that, subject to the exceptions set out in the clause and the public interest exception—

it is an offence for a person to knowingly install, use or maintain an optical surveillance device on or within premises or a vehicle or on any other thing (whether or not the person has lawful possession or lawful control of the premises, vehicle or thing), to record visually or observe the carrying on of a private activity without the implied or express consent of each party to the activity;

it is an offence for a person to knowingly install, use or maintain an optical surveillance device on or in premises, a vehicle or any other thing, to record visually or observe the carrying on of a private activity without the express or implied consent of each party to the activity and, if the installation, use or maintenance of the device involves entry onto or into the premises or vehicle, without the express or implied consent of the owner or occupier of the premises or vehicle;

it is an offence for a person to knowingly install, use or maintain an optical surveillance device on or in premises, a vehicle or any other thing, to record visually or observe the carrying on of a private activity without the express or implied consent of each party to the activity and, if the installation, use or maintenance of the device involves interference with the premises, vehicle or thing, without the express or implied consent of the person having lawful possession or lawful control of the premises, vehicle or thing.

The maximum penalty for an offence against this provision is $75,000 for a body corporate, and $ 15,000 or imprisonment for 3 years for a natural person.

6—Listening devices and optical surveillance devices—public interest exception

This clause provides for there to be an exception to the prohibitions provided for in clauses 4 and 5 if it is in the public interest.

7—Tracking devices

This clause provides that, subject to the exceptions set out in the clause, it is an offence for a person to knowingly install, use or maintain a tracking device to determine the geographical location of—

a person, without the express or implied consent of that person; or

a vehicle or thing, without the express or implied consent of the owner or a person in lawful possession or control, of that vehicle or thing.

The maximum penalty for an offence against this provision is $75,000 for a body corporate, and $15,000 or imprisonment for 3 years for a natural person.

8—Data surveillance devices

This clause provides that, subject to the exceptions set out in the clause, it is an offence for a person to knowingly install, use or maintain a data surveillance device to access, track, monitor or record the input of information into, or the output of information from, or information stored in, a computer without the express or implied consent of the owner, or person with lawful control or management, of the computer.

The maximum penalty for an offence against this provision is $75,000 for a body corporate, and $15,000 or imprisonment for 3 years for a natural person.

Division 2—Regulation of communication or publication of information or material derived from use of surveillance devices

9—Communication or publication of information or material—lawful interest

This clause provides that a person must not knowingly use, communicate or publish information or material derived from the use of a listening device or an optical surveillance device in circumstances where the device was used to protect the lawful interests of that person except—

to a person who was a party to the conversation or activity to which the information or material relates; or

with the consent of each party to the conversation or activity to which the information or material relates; or

to an officer of an investigating agency for the purposes of a relevant investigation or relevant action or proceeding; or

in the course, or for the purposes, of a relevant action or proceedings; or

in relation to a situation where a person is being subjected to violence or there is an imminent threat of violence to a person; or

to a media organisation; or

in accordance with an order of a judge under this Division; or

otherwise in the course of duty or as required or authorised by law.

The clause also regulates the use, communication and publishing of information or material derived from the use of a listening device or an optical surveillance device by licensed investigation agents and loss adjusters.

The maximum penalty for any of the offences under this clause is $50,000 for a body corporate or $10,000 for a natural person.

10—Communication or publication of information or material—public interest

This clause provides that a person must not knowingly use, communicate or publish information or material derived from the use of a listening device or an optical surveillance device in circumstances where the device was used in the public interest except in accordance with an order of a judge under this Division.

The maximum penalty for any of the offences under this clause is $50,000 for a body corporate or $10,000 for a natural person.

However, exceptions are provided in circumstances where the device was used in the public interest if—

the use, communication or publication of the information or material is made to a media organisation; or

the use, communication or publication of the information or material is made by a media organisation and the information or material is in the public interest; or

the information or material relates to issues of animal welfare and the use, communication or publication of the information or material is made to the RSPCA; or

the use, communication or publication of such information or material is made by the RSPCA and the information or material is in the public interest.

11—Orders authorising use, communication or publication of certain information or material

This clause provides that a person may, for the purposes of clauses 9 and 10, in accordance with the rules of court, apply to a judge for an order authorising the use, communication or publication of information or material derived from the use of a listening device or an optical surveillance device.

Such an order may—

specify the information or material the subject of the order; and

specify the manner in which, and to whom, the specified information or material is to be used, communicated or published; and

may contain conditions and limitations and any other matter as the judge thinks fit.

12—Prohibition on communication or publication derived from use of surveillance device in contravention of Part 2

This clause prohibits a person from knowingly using, communicating or publishing information or material derived from the use (whether by that person or another person) of a surveillance device in contravention of Part 2.

The maximum penalty for such an offence is $75,000 for a body corporate, and $15,000 or imprisonment for 3 years for a natural person.

However, the prohibition does not prevent the use, communication or publication of information or material derived from the use of a surveillance device in contravention of this Part—

to a person who was a party to the conversation or activity to which the information or material relates; or

with the consent of each party to the conversation or activity to which the information or material relates; or

for the purposes of a relevant investigation or relevant action or proceeding relating to that contravention of this Part or a contravention of this section involving the communication or publication of that information or material; or

in the course of proceedings for an offence against this measure; or

otherwise in the course of duty or as required by law.

Part 3—Surveillance device warrants and surveillance device (emergency) authorities

Division 1—Surveillance device (tracking) warrants

13—Application of Division

This clause provides that this Division applies if, for the purposes of the investigation of a matter by an investigating agency, the agency requires the authority—

to install on a vehicle or thing situated in a public place, or in the lawful custody of the agency, 1 or more tracking devices; and

to use those devices.

14—Application procedure

This clause sets out the application procedure for the issue, variation or renewal of a surveillance device (tracking) warrant by an officer of an investigating agency to the chief officer of the agency.

15—Surveillance device (tracking) warrant

This clause sets out the grounds on which the chief officer of a law enforcement agency to whom application is made to issue a surveillance device (tracking) warrant and specifies the information that must be set out in the warrant.

Subject to any conditions or limitations specified in the warrant—

a warrant authorising the use (in a public place or elsewhere) of a tracking device in respect of the geographical location of a specified person or a person whose specific identity is unknown who, according to the terms of the warrant, is suspected on reasonable grounds of having committed, or being likely to commit, a serious offence will be taken to authorise interference with any vehicle or thing situated in a public place, or in the lawful custody of the relevant investigating agency, as reasonably required to install, use, maintain or retrieve the device for that purpose; and

a warrant authorising (whether under the terms of the warrant or by force of the preceding paragraph) interference with any vehicle or thing in a public place, or in the lawful custody of the relevant investigating agency, will be taken to authorise the use of reasonable force or subterfuge for that purpose; and

the powers conferred by the warrant may be exercised by the responsible officer or under the authority of the responsible officer at any time and with such assistance as is necessary.

Division 2—Surveillance device (general) warrants

16—Application of Division

This clause provides that this Division applies if, for the purposes of the investigation of a matter by an investigating agency, the agency requires the authority to do any or all of the following:

to use 1 or more types of surveillance device (including a tracking device);

to enter or interfere with any premises for the purposes of installing, using, maintaining or retrieving 1 or more surveillance devices;

to interfere with any vehicle or thing for the purposes of installing, using, maintaining or retrieving 1 or more surveillance devices.

17—Usual application procedure

This clause sets out the application procedure for the issue, variation or renewal of a surveillance device (general) warrant by an officer of an investigating agency to a judge of the Supreme Court. Subject to clause 18, an application must be made by providing the judge with a written application and by appearing personally before the judge. The clause sets out the information that must be specified in the application and provides that the application must be accompanied by an affidavit verifying the application.

18—Remote application procedure

This clause sets out the procedure for a remote application for a surveillance device (general) warrant if it is impracticable in the circumstances to make an application according to the procedure set out in clause 17. In those circumstances, an application for the issue, variation or renewal of a surveillance device (general) warrant may be made by fax, email, telephone or other electronic means. This clause sets out the procedure to be followed in relation to any such application.

19—Surveillance device (general) warrant

This clause provides that a judge may issue a surveillance device (general) warrant on application if satisfied that there are in the circumstances reasonable grounds for so doing. The clause sets out other matters that must be specified in the warrant, including that the warrant may specify a code name rather than a real name if satisfied that the disclosure of a person's name in the warrant may endanger a person's safety. Subject to any conditions or limitations specified in the warrant—

a warrant authorising 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, who, according to the terms of the warrant, is suspected on reasonable grounds of having committed, or being likely to commit, a serious offence will be taken to authorise—

entry to or interference with any premises, vehicle or thing as reasonably required to install, use, maintain or retrieve the device for that purpose; and

the use of the device on or about the body of the person; and

a warrant authorising (whether under the terms of the warrant or by force of paragraph (a)(i)) entry to or interference with any premises, vehicle or thing will be taken to authorise—

the use of reasonable force or subterfuge for that purpose; and

any action reasonably required to be taken in respect of a vehicle or thing for the purpose of installing, using, maintaining or retrieving a surveillance device to which the warrant relates; and

the extraction and use of electricity for that purpose or for the use of the surveillance device to which the warrant relates; and

a warrant authorising entry to specified premises will be taken to authorise non-forcible passage through adjoining or nearby premises (but not through the interior of any building or structure) as reasonably required for the purpose of gaining entry to those specified premises; and

the powers conferred by the warrant may be exercised by the responsible officer or under the authority of the responsible officer at any time and with such assistance as is necessary.

Division 3—Surveillance device (emergency) authorities

20—Application procedure

This clause sets out the procedure for an officer of an investigating agency to make an application (in person, in writing or by fax, email, telephone or other means of communication) to the chief officer of the agency for a surveillance device (emergency) authority in relation to the use of a surveillance device. The clause sets out the grounds and circumstances on which such an application may be made.

21—Surveillance device (emergency) authority

This clause provides that the chief officer of a law enforcement agency to whom an application is made may, if satisfied that there are, in the circumstances of the case, reasonable grounds to do so, grant a surveillance device (emergency) authority in relation to the use of a surveillance device authorising the officer to do 1 or more of the following (according to its terms):

the use of 1 or more types of surveillance device;

entry to or interference with any premises as reasonably required for the purposes of installing, using, maintaining or retrieving 1 or more surveillance devices;

interference with any vehicle or thing as reasonably required for the purposes of installing, using, maintaining or retrieving 1 or more surveillance devices.

The clause sets out the matters that must be specified in the surveillance device (emergency) authority, including any conditions and limitations on the authority. The powers that may be authorised under a surveillance device (emergency) authority are similar to the powers that may be authorised by a surveillance device warrant.

22—Application for confirmation of surveillance device (emergency) authority etc

This clause provides that the chief officer of a law enforcement agency must, within 2 business days after granting an emergency authorisation, make an application (by personal appearance following the lodging of a written application) to a judge for approval of the granting of, and the exercise of powers under, the emergency authorisation. Any such application must not be heard in open court.

23—Confirmation of surveillance device (emergency) authority etc

On hearing an application under clause 22, the judge—

must—

if satisfied that the granting of the surveillance device (emergency) authority, and the exercise of powers under the authority, was justified in the circumstances, confirm the authority and the exercise of those powers; and

cancel the surveillance device (emergency) authority; and

if a surveillance device (general) warrant is sought and the judge is satisfied that there are reasonable grounds to issue a warrant in the circumstances—issue a surveillance device (general) warrant;

may, if not satisfied that the circumstances justified the granting of the surveillance device (emergency) authority, make 1 or more of the following orders:

an order that the use of the surveillance device cease;

an order that, subject to any conditions the judge thinks fit, the device be retrieved;

an order that any information obtained from or relating to the exercise of powers under the authority, or any record of that information, be dealt with in the way specified in the order;

any other order as the judge thinks fit.

If a judge confirms a surveillance device (emergency) authority, and the exercise of powers under the authority, evidence obtained through the exercise of those powers is not inadmissible in any proceedings merely because the evidence was obtained before the authority was confirmed.

Division 4—Recognition of corresponding warrants and authorities

24—Corresponding warrants

This clause provides that a corresponding warrant may be executed in this State in accordance with its terms as if it were a surveillance device (tracking) warrant or surveillance device (general) device warrant (as the case may be) issued under this measure.

25—Corresponding emergency authorities

This clause provides that a corresponding emergency authorisation authorises the use of a surveillance device in accordance with its terms in this State, as if it were a surveillance device (emergency) authority granted under this measure unless the judge has ordered, under a provision of a corresponding law, that the use of a surveillance device under the corresponding emergency authority cease.

Division 5—Miscellaneous

26—Management of records relating to surveillance device warrants etc

The chief officer of an investigating agency by whom a surveillance device (tracking) warrant is issued, or a surveillance device (emergency) authority is granted, must cause the application and the warrant or authority (and any copy of the warrant or authority) to be managed in accordance with the regulations.

A judge by whom a surveillance device (general) warrant is issued, varied or renewed must cause each of the following to be managed in accordance with the rules of the Supreme Court:

the application;

the warrant (and any duplicate or copy of the warrant) as issued, varied or renewed;

any code name specified in the warrant;

the affidavit verifying the application.

27—Limitations on use of information or material derived under this Part

This clause provides that a person must not knowingly communicate or publish information or material derived from the use (whether by that person or another person) of a surveillance device under an authority under this Part except—

to a person who was a party to the conversation or activity to which the information or material relates; or

with the consent of each party to the conversation or activity to which the information or material relates; or

for the purposes of a relevant investigation; or

for the purposes of a relevant action or proceeding; or

otherwise in the course of duty or as required by law; or

if the information or material has been taken or received in public as evidence in a relevant action or proceeding.

The maximum penalty for an offence against this provision is $75 000 for a body corporate, and $15,000 or imprisonment for 3 years for a natural person.

Part 4—Register, reports and records

28—Interpretation

This clause defines the class of persons to whom this Part applies.

29—Register

This clause provides that the chief officer of an investigating agency (other than the ACC) must keep a register of warrants and authorities issued to the agency under this measure and specifies the information that must be contained in the register.

30—Reports and records

This clause makes provision for the reports that must be given to the Minister by the chief officer of an investigating agency (other than the ACC) in relation to surveillance device warrants issued to officers of the agency under this measure and the uses and outcomes relating to such warrants.

31—Control by investigating agencies of certain records, information and material

This clause provides that the chief officer of an investigating agency must keep certain records and information relating to warrants and authorities under this measure, and control, manage access to, and destroy any such records, information and material, in accordance with the regulations.

32—Inspection of records

This clause provides that the review agency for an investigating agency may, at any time, and must, at least once in each period of 6 months, inspect the records of the agency for the purpose of ascertaining the extent of compliance with this measure. The review agency must, not later than 2 months after the completion of any such inspection, provide the Minister with a written report on the inspection.

33—Powers of review agency

This clause sets out the powers of a review agency for an investigating agency for the purposes of carrying out an inspection under this Division. Under this clause, it is an offence (the penalty for which is $15,000 or imprisonment for 3 years) to refuse or fail to comply with a requirement of the review agency under this clause, or to hinder or give false or misleading information to the review agency.

Part 5—Miscellaneous

34—Offence to wrongfully disclose information

This clause provides that it is an offence for a person to knowingly communicate or publish information or material about a surveillance device warrant or surveillance device (emergency) authority except—

as required to do so under this measure; or

for the purposes of a relevant investigation; or

for the purposes of a relevant action or proceeding; or

in the course of proceedings for an offence against this measure; or

otherwise in the course of duty or as required by law.

The maximum penalty for an offence against this provision is a fine of $50 000 for a body corporate or, in the case of a natural person, a fine of $10,000 or imprisonment for 2 years.

35—Delegation

This clause provides that the chief officer of an investigating agency may only delegate his or her functions under this measure to a senior officer (as defined in the clause).

36—Possession etc of declared surveillance device

This clause provides for a mechanism by which the Minister may, by notice in the Gazette, declare that this clause applies to a surveillance device or a surveillance device of a class or kind specified in the notice. A person is prohibited from having in his or her possession, custody or control any such declared surveillance device (the penalty for which is, for a body corporate, a fine of $50,000 and, for a natural person, $10,000 or imprisonment for 2 years) without the consent of the Minister.

37—Power to seize surveillance devices etc

This clause provides that, if an officer of an investigating agency suspects on reasonable grounds that—

a person has possession, custody or control of a declared surveillance device without the consent of the Minister; or

any other offence against this measure has been, is being or is about to be committed with respect to a surveillance device or information derived from the use of a surveillance device,

the officer may seize the device or a record of the information.

38—Imputing conduct to bodies corporate

This clause makes provision for certain conduct to be imputed as conduct of a body corporate.

39—Evidence

This clause makes provision for evidence in proceedings for offences in the usual terms.

40—Forfeiture of surveillance devices

This clause makes provision for the forfeiture of surveillance devices in the case of a conviction of an offence against this measure.

41—Regulations

This clause provides that the Governor may make regulations for the purposes of this measure.

Schedule 1—Related amendments, repeal and transitional provisions

This Schedule makes related and consequential amendments to the Criminal Investigation (Covert Operations) Act 2009 and the Director of Public Prosecutions Act 1991; repeals the Listening and Surveillance Devices Act 1972; and makes provision for transitional arrangements consequent on the repeal of that Act and the enactment of this measure.

Debate adjourned on motion of Mr Gardner.