Commonwealth Numbered Acts

LAW AND JUSTICE LEGISLATION AMENDMENT ACT 1989 No. 11 of 1990 - SECT 5

5. (1) After section 12A of the Principal Act the following Division is
inserted in Part II:

"Division 2 - Use of listening devices in relation to general offences
Definitions

"12B. In this Division:
'class 1 general offence' means a general offence that is an offence of any of
the following kinds:

   (a)  murder, or an offence of a kind equivalent to murder;

   (b)  kidnapping, or an offence of a kind equivalent to kidnapping;

   (c)  an offence constituted by:

   (i)  aiding, abetting, counselling or procuring the commission of; or

   (ii) being in any way, whether by act or omission and whether directly or
        indirectly, knowingly concerned in, or party to, the commission of; or

   (iii) conspiring to commit; an offence of a kind referred to in paragraph
        (a) or (b);
'class 2 general offence' means a general offence that is an offence of any of
the following kinds:

   (a)  an offence against:

   (i)  section 32, 33, 34, 37, 42, 43, 44, 72, 73, 73a, 74 or 88 of the
        Crimes  Act 1914 ; or

   (ii) the Secret Commissions Act 1905; or

   (iii) section 13, 14, 15, 16 or 20 of the Crimes (Offences against the
        Government) Act 1989 of the Australian Capital Territory;

   (b)  an offence (other than a class 1 general offence or an offence of a
        kind referred to in paragraph (a)) punishable by imprisonment for life
        or for a period, or maximum period, of at least 7 years, where the
        particular conduct constituting the offence involved, involves, or
        would involve, as the case requires:

   (i)  loss of a person's life or serious risk of loss of a person's life; or

   (ii) serious personal injury or serious risk of serious personal injury; or

   (iii) serious damage to property in circumstances endangering the safety of
        a person; or

   (iv) trafficking in narcotic drugs;

   (c)  an offence constituted by:

   (i)  aiding, abetting, counselling or procuring the commission of; or

   (ii) being in any way, whether by act or omission and whether directly or
        indirectly, knowingly concerned in, or party to, the commission of; or

   (iii) conspiring to commit; an offence of a kind referred to in paragraph
        (a) or (b);
'customs narcotics offence' means an offence punishable as provided by section
235 of the Customs Act 1901;
'designated technical officer' means a person declared under section 12E to be
a designated technical officer;
'eligible Judge' means a Judge in relation to whom a consent under subsection
12D (1), and a nomination under subsection 12D (2), are in force;
'general offence' means:

   (a)  an offence against a law of the Commonwealth that is not a customs
        narcotics offence; or

   (b)  an offence against a law of the Australian Capital Territory;
'general offence inquiries' means:

   (a)  inquiries in relation to a general offence that has been committed or
        is reasonably suspected of having been committed; or

   (b)  if there are circumstances reasonably giving rise to the suspicion
        that a general offence is likely to be committed - inquiries in
        relation to the likely commission of the offence;
'listening device' means any instrument, device or equipment capable of being
used, whether alone or in conjunction with any other instrument, device or
equipment, to record or listen to spoken words;
'official' means:

   (a)  a member; or

   (b)  a designated technical officer;
'premises' includes:

   (a)  any structure, building, aircraft, ship or vehicle; and

   (b)  any land (whether or not enclosed or built on); and

   (c)  any part of premises (including premises of a kind referred to in
        paragraph (a) or (b)). Application of Division

"12C. (1) Nothing in this Division applies in relation to the use, in
circumstances prescribed for the purposes of this subsection, of a listening
device under a warrant issued under a law of a State or Territory, being a law
prescribed for the purposes of this subsection.

"(2) Nothing in this Division, or in a warrant under this Division, applies in
relation to the use of a listening device for a purpose that would, for the
purposes of the Telecommunications (Interception) Act 1979, constitute the
interception (whether or not in contravention of subsection 7 (1) of that Act)
of a communication passing over a telecommunications system within the meaning
of that Act. Judges eligible to issue warrants for use of listening devices

"12D. (1) A Judge of a court created by the Parliament may, by writing,
consent to be nominated by the Minister under subsection (2).

"(2) The Minister may, by writing, nominate a Judge in relation to whom a
consent is in force under subsection (1) to be a Judge who may issue warrants
under section 12G.

"(3) An eligible Judge has, in relation to the performance of a function or
exercise of a power conferred on an eligible Judge by this Division, the same
protection and immunity as a Justice of the High Court has in relation to
proceedings in the High Court. Appointment of designated technical officers

"12E. (1) The Commissioner or a member appointed, in writing, by the
Commissioner for the purposes of this subsection may, by writing, declare:

   (a)  a staff member to be a designated technical officer; or

   (b)  a class of staff members to be designated technical officers.

"(2) A person who is a designated technical officer stops being a designated
technical officer if the person stops being a staff member. Use of listening
devices in relation to general offences

"12F. (1) It is unlawful for an official to use, for the purposes of general
offence inquiries that are being made by members, a listening device for the
purpose of listening to or recording words while they are being spoken by a
person unless:

   (a)  the official is the speaker of the words or is a person, or is
        included in a class or group of persons, by whom the speaker of the
        words intends, or should reasonably expect, the words to be heard; or

   (b)  the official listens to or records the words with the consent, express
        or implied, of a person who is permitted by paragraph (a) to listen to
        or record the words; or

   (c)  if the general offence concerned is a class 1 general offence or a
        class 2 general offence - the official does so in accordance with a
        warrant under section 12G and the provisions of this Division.

"(2) It is unlawful for a person acting by arrangement with an official to
use, for the purposes of general offence inquiries that are being made by
members, a listening device for the purpose of listening to or recording words
while they are being spoken by a person unless the first-mentioned person is
the speaker of the words or is a person, or is included in a class or group of
persons, by whom the speaker of the words intends, or should reasonably
expect, the words to be heard.

"(3) It is the duty of the Commissioner to take reasonable steps to ensure
that subsections (1) and (2) are not contravened by officials.

"(4) Despite any law of a State or Territory:

   (a)  an official does not act unlawfully merely because the official uses a
        listening device as mentioned in subsection (1) in circumstances to
        which paragraph (1) (a), (b) or (c) is applicable; and

   (b)  a person acting by arrangement with an official does not act
        unlawfully merely because the person uses a listening device as
        mentioned in subsection (2) in circumstances in which the use of the
        device is not declared to be unlawful by that subsection. Warrants for
        use of listening devices

"12G. (1) A member may apply to an eligible Judge for a warrant under this
section authorising officials to use a listening device in relation to a
particular person or particular premises.

"(2) If:

   (a)  the application is for a warrant authorising officials to use a
        listening device in relation to a particular person; and

   (b)  the Judge is satisfied, by information on oath:

   (i)  that the person has committed, or is suspected on reasonable grounds
        of having committed, or of being likely to commit, a class 1 general
        offence or a class 2 general offence; and

   (ii) that information that would be likely to be obtained by the use by
        officials of a listening device to listen to or record words spoken by
        or to the person would be likely to assist members in, or in relation
        to, inquiries that are being made in relation to the commission, or
        likely commission, of the offence by the person; and

   (iii) that, having regard to the matters mentioned in subsection (6), some
        or all of that information cannot appropriately be obtained by methods
        of a kind referred to in paragraph (6) (a); and

   (iv) if the offence is a class 2 general offence - that, having regard to
        the matters mentioned in subsection (7) and no other matters, such a
        warrant should be issued; the Judge may issue a warrant authorising
        officials to use a listening device for the purpose of listening to or
        recording words spoken by, to, or in the presence of, the person.

"(3) The warrant may authorise:

   (a)  officials to enter any premises in which the person is, or is likely
        to be, for the purpose of installing, maintaining, testing, using or
        recovering a listening device or a part of a listening device; and

   (b)  the use of a listening device for the purpose of listening to or
        recording words spoken by, to, or in the presence of, the person
        anywhere in Australia.

"(4) If:

   (a)  the application is for a warrant authorising officials to use a
        listening device in relation to particular premises (which may be
        premises anywhere in Australia); and

   (b)  the Judge is satisfied, by information on oath:

   (i)  that there are reasonable grounds for suspecting that the premises
        have been, or are likely to be, used in relation to the commission, or
        likely commission, of a class 1 general offence or a class 2 general
        offence; and

   (ii) that information that would be likely to be obtained by the use by
        officials of a listening device to listen to or record words spoken by
        or to persons in the premises would be likely to assist members in, or
        in relation to, inquiries that are being made in relation to the use,
        or likely use, of the premises in relation to the commission, or
        likely commission, of the offence; and

   (iii) that, having regard to the matters mentioned in subsection (6), some
        or all of that information cannot appropriately be obtained by methods
        of a kind referred to in paragraph (6) (a); and

   (iv) if the offence is a class 2 general offence - that, having regard to
        the matters mentioned in subsection (7) and no other matters, such a
        warrant should be issued; the Judge may issue a warrant authorising
        officials to use a listening device for the purpose of listening to or
        recording words spoken by or to any person while the person is in the
        premises.

"(5) The warrant may authorise officials to enter the premises for the purpose
of installing, maintaining, testing, using or recovering a listening device or
a part of a listening device.

"(6) For the purposes of subparagraphs (2) (b) (iii) and (4) (b) (iii), the
matters to which a Judge is to have regard are as follows:

   (a)  the extent to which methods of conducting inquiries in relation to the
        offence that do not involve the use by officials of a listening device
        have been used by, or are available to, members;

   (b)  how much information of a kind mentioned in subparagraph (2) (b) (ii)
        or (4) (b) (ii), as the case may be, would be likely to be obtained by
        such
methods;   (c)  how much the use of such methods would be likely to prejudice
inquiries in relation to the offence, whether because of a delay in obtaining
some or all of that information or for any other reason.

"(7) For the purposes of subparagraphs (2) (b) (iv) and (4) (b) (iv), the
matters to which a Judge is to have regard are as follows:

   (a)  how much the privacy of any person would be likely to be interfered
        with by the use by officials of a listening device in relation to the
        person or premises concerned;

   (b)  the gravity of the conduct constituting the offence;

   (c)  to what extent information of a kind mentioned in subparagraph (2) (b)
        (ii) or (4) (b) (ii), as the case may be, would be likely to assist in
        connection with inquiries in relation to the offence.

"(8) A warrant under this section must be:

   (a)  signed by the Judge issuing the warrant; and

   (b)  in accordance with the appropriate prescribed form.

"(9) A warrant under this section may be expressed to be subject to conditions
or restrictions specified in the warrant.

"(10) If a warrant under this section authorises officials to enter premises:

   (a)  the warrant must state whether entry is authorised to be made at any
        time of the day or night or only during specified hours; and

   (b)  the warrant may specify that entry may be made without permission
        first being sought or demand first being made, and may authorise
        measures that the Judge is satisfied are necessary to effect the
        entry.

"(11) A warrant under this section must specify a period (not exceeding 6
months) for which it is to remain in force.

"(12) Subsection (11) is not to be construed as preventing the issue of any
further warrant. Information to be given in support of application for warrant

"12H. Information given to an eligible Judge for the purposes of subsection
12G (2) or (4):

   (a)  may be given orally or otherwise; and

   (b)  must include the facts and other grounds on which the applicant
        considers it necessary that the warrant should be issued. Exercise of
        powers under warrant

"12J. (1) The authority conferred by a warrant under section 12G is to be
exercised only by the Commissioner or other members approved, for the purposes
of the warrant or warrants under that section, by the Commissioner or a member
appointed, in writing, by the Commissioner for the purposes of this
subsection.

"(2) Despite subsection (1), a designated technical officer may provide
technical assistance to a member who is exercising the authority conferred by
the warrant.

"(3) A reference in subsection (2) to the provision of technical assistance
includes a reference to the doing of any act in relation to installing,
maintaining, testing, using or recovering a listening device, or a part of a
listening device, in accordance with the warrant. Discontinuance of action
before expiration of warrant

"12K. If, before a warrant under section 12G expires, the Commissioner is
satisfied that the grounds on which the warrant was issued no longer exist,
the Commissioner must immediately:

   (a)  take such steps as are necessary to ensure that action authorised by
        the warrant (other than the recovery of a listening device or a part
        of a listening device) is discontinued; and

   (b)  revoke the warrant by signed instrument. Application of certain
        provisions of Customs Act

"12L. Sections 219f to 219k (inclusive) of the Customs Act 1901 apply for the
purposes of this Division as if:

   (a)  references to a warrant under section 219b, or under Division 1a of
        Part XII, of that Act were instead references to a warrant under
        section 12G; and

   (b)  reference to narcotics inquiries were instead references to general
        offence inquiries; and

   (c)  references to a Judge were instead references to an eligible Judge;
        and

   (d)  references to an instrument issued under section 219e of that Act were
        instead references to an instrument issued under section 12K; and

   (e)  for the purposes of the provisions of subsections 219f (1), (2) and
        (3) (other than paragraph (2) (a)) of that Act, the Australian Federal
        Police were the only Commonwealth law enforcement agency within the
        meaning of that Act; and

   (f)  any other necessary changes were made.".

(2) Until the commencement of section 6 of the Australian Federal Police 
Legislation Amendment Act (No. 2) 1989 , section 12E of the Principal Act as
amended by this Act has effect as if references to a staff member were
references to a person referred to in section 16 of the Principal Act.