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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Surveillance Devices Amendment (Mutual
Recognition) Bill 2013
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.
Overview of Bill
The object of this Bill is to amend the Surveillance Devices Act 2007 so as to bring the Act further
into line with the model law on cross-border investigative powers for law enforcement developed
by the Australian Leaders' Summit on Terrorism and Multi-jurisdictional Crime. This will
facilitate the mutual recognition of warrants and authorisations for the use of surveillance devices
issued under the New South Wales Act and those issued under Acts of other jurisdictions.
Outline of provisions
Clause 1 sets out the name (also called the short title) of the proposed Act.
Clause 2 provides for the commencement of the proposed Act on the date of assent to the
proposed Act.
Schedule 1 Amendment of Surveillance Devices Act 2007
No 64
Timing and contents of reports on use of surveillance device warrants
Schedule 1 [1] provides that a surveillance device warrant must specify the period within which
a report in respect of the warrant must be made to the eligible Judge or eligible Magistrate who
issued the warrant. That period must expire not less than 60 days after the expiry of the warrant.
The provision that requires the report (section 44 (1)) states that the report must be made within
the time specified in the warrant, but there is currently no obligation to specify such a time. This
is inconsistent with the model law.
b2013-139-11.d12
Surveillance Devices Amendment (Mutual Recognition) Bill 2013 [NSW]
Explanatory note
Schedule 1 [7] provides that, where a surveillance device warrant has been issued in New South
Wales and executed in a participating jurisdiction, the report on the use of the warrant must (in
addition to the other matters currently required) include information (which is required by the
model law) giving details of the benefit to the investigation of the use of the relevant surveillance
device and of the general use made or to be made of any evidence or information obtained by the
use of the device, and details of the compliance with the conditions (if any) to which the warrant
was subject.
Timing and contents of reports on use of retrieval warrants
Schedule 1 [2] provides that a retrieval warrant must specify the period within which a report in
respect of the warrant must be made to the eligible Judge or eligible Magistrate who issued the
warrant under section 44 (6) of the Act, with that period being one that expires not less than
60 days after the expiry of the warrant. There is currently no obligation to specify such a time in
the warrant itself. This is inconsistent with the model law.
Schedule 1 [8] makes a consequential amendment.
Schedule 1 [9] provides that, where a retrieval warrant has been issued in New South Wales and
executed in a participating jurisdiction, the report on the use of the warrant must (in addition to
the other matters currently required) include information (which is required by the model law)
giving details of premises entered, things opened or removed or replaced, and details of the
compliance with the conditions (if any) to which the warrant was subject.
Emergency use of surveillance devices arising from imminent threats of
commission of serious narcotic offences
Schedule 1 [3] provides that emergency authorisations issued in New South Wales to allow a law
enforcement officer to use a surveillance device in a participating jurisdiction without a warrant
cannot be granted in relation to threats of serious narcotic offences, as at present. This will bring
New South Wales in line with the model law, which does not permit the use of surveillance
devices without a warrant where there is a threat of serious narcotics offences only.
Exemption to prohibition on use, communication or publication of information
applies to serious narcotic offences only if information obtained in New South
Wales
Schedule 1 [5] and [6] limit an existing exemption to the prohibition on the use, communication
or publication of protected information that currently applies to permit the use, communication or
publication of information obtained from the use of a surveillance device by a person who believes
on reasonable grounds that the use or communication is necessary to help prevent or reduce the
threat of a serious narcotics offence. Protected information relating to a serious narcotics offence
will be exempt only if it was obtained from the use of a surveillance device in New South Wales.
(The existing exemption to permit the use, communication or publication of protected information
by a person who believes on reasonable grounds that the use or communication is necessary to
help prevent or reduce the threat of serious violence to a person or substantial damage to property
will continue to apply whether the protected information was obtained in a participating
jurisdiction or in New South Wales. That exemption is part of the model law.)
Schedule 1 [4] inserts an omitted word in a provision about protected information.
Contents of annual report to Parliament
Schedule 1 [10] includes additional reporting requirements in relation to the annual report about
the operation of the Act that the Attorney General must table in Parliament. In addition to the other
matters currently required, which apply to the exercise of powers in New South Wales or
participating jurisdictions, the amendment will require the annual report to include additional
details (that the model law requires) in cases where a surveillance device warrant issued in New
South Wales has been executed in a participating jurisdiction.
Schedule 1 [11] makes a consequential amendment.
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Surveillance Devices Amendment (Mutual Recognition) Bill 2013 [NSW]
Explanatory note
Keeping documents and records connected with warrants and emergency
authorisations executed in participating jurisdictions
Schedule 1 [13] imposes additional obligations on chief officers of law enforcement agencies to
keep records, in line with the model law, in relation to surveillance devices used by their agencies
in a participating jurisdiction under warrants or emergency authorisations issued in New South
Wales.
Schedule 1 [12] makes a consequential amendment.
Savings and transitional regulations
Schedule 1 [14] provides for the making of savings and transitional regulations consequent on the
enactment of any Act that amends the Surveillance Devices Act 2007.
Page 3
First print
New South Wales
Surveillance Devices Amendment (Mutual
Recognition) Bill 2013
Contents
Page
1 Name of Act 2
2 Commencement 2
Schedule 1 Amendment of Surveillance Devices Act 2007 No 64 3
b2013-139-11.d12
New South Wales
Surveillance Devices Amendment (Mutual
Recognition) Bill 2013
No , 2013
A Bill for
An Act to amend the Surveillance Devices Act 2007 to make further provision with respect to the
use and retrieval of surveillance devices; and for other purposes.
Surveillance Devices Amendment (Mutual Recognition) Bill 2013 [NSW]
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Surveillance Devices Amendment (Mutual Recognition) Act 2013. 3
2 Commencement 4
This Act commences on the date of assent to this Act. 5
Page 2
Surveillance Devices Amendment (Mutual Recognition) Bill 2013 [NSW]
Schedule 1 Amendment of Surveillance Devices Act 2007 No 64
Schedule 1 Amendment of Surveillance Devices Act 2007 1
No 64 2
[1] Section 20 Contents of surveillance device warrants 3
Insert at the end of section 20 (1) (b) (xi): 4
, and 5
(xii) the period within which a report about the use of the surveillance device 6
authorised by the warrant must be furnished to the eligible Judge or 7
eligible Magistrate under section 44 (1), being a period that expires not 8
less than 60 days after the expiry of the warrant. 9
[2] Section 28 Contents of retrieval warrants 10
Insert at the end of section 28 (1) (b) (vii): 11
, and 12
(viii) the period within which a report about the retrieval of the surveillance 13
device authorised by the warrant must be furnished to the eligible Judge 14
or eligible Magistrate under section 44 (6), being a period that expires 15
not less than 60 days after the expiry of the warrant. 16
[3] Section 32 Emergency authorisation--continued use of authorised surveillance 17
device in participating jurisdiction 18
Insert after section 32 (4): 19
(5) An emergency authorisation cannot be granted in connection with a serious 20
narcotics offence. 21
[4] Section 40 Prohibition on use, communication or publication of protected 22
information 23
Insert "protected" before "information" in section 40 (1) (a). 24
[5] Section 40 (3) (b) 25
Omit ", substantial damage to property or the commission of a serious narcotics offence". 26
Insert instead "or substantial damage to property". 27
[6] Section 40 (3) (b1) 28
Insert after section 40 (3) (b): 29
(b1) the use or communication of protected information obtained from the 30
use of a device in this jurisdiction by a person who believes on 31
reasonable grounds that the use or communication is necessary to help 32
prevent or reduce the threat of the commission of a serious narcotics 33
offence, or 34
[7] Section 44 Reports to eligible Judge or eligible Magistrate and Attorney General 35
Insert at the end of section 44 (1) (g): 36
, and 37
(h) in the case of a surveillance device warrant issued in this jurisdiction 38
and executed in a participating jurisdiction: 39
(i) giving details of the benefit to the investigation of the use of the 40
relevant surveillance device and of the general use made or to be 41
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Surveillance Devices Amendment (Mutual Recognition) Bill 2013 [NSW]
Schedule 1 Amendment of Surveillance Devices Act 2007 No 64
made of any evidence or information obtained by the use of the 1
device, and 2
(ii) giving details of the compliance with the conditions (if any) to 3
which the warrant was subject. 4
[8] Section 44 (6) 5
Omit "for the purpose by the eligible Judge or eligible Magistrate granting the application". 6
Insert instead "in the retrieval warrant". 7
[9] Section 44 (6) (c) 8
Insert at the end of section 44 (6) (b): 9
, and 10
(c) in the case of a retrieval warrant issued in this jurisdiction and executed 11
in a participating jurisdiction: 12
(i) giving details of any premises entered, anything opened and any 13
object removed or replaced under the warrant, and 14
(ii) giving details of the compliance with the conditions (if any) to 15
which the warrant was subject. 16
[10] Section 45 Annual reports 17
Insert after section 45 (1) (b): 18
(b1) the number of remote applications made by law enforcement officers 19
during that year for surveillance device warrants to be issued in this 20
jurisdiction and executed in a participating jurisdiction, 21
(b2) the number of applications made by law enforcement officers for 22
surveillance device warrants to be issued in this jurisdiction and 23
executed in a participating jurisdiction that were refused during that 24
year, and the reasons for refusal, 25
(b3) the number of applications for extensions of surveillance device 26
warrants issued in this jurisdiction and executed in a participating 27
jurisdiction, made by law enforcement officers during that year, the 28
number of extensions granted or refused and the reason why they were 29
granted or refused, 30
(b4) the number of arrests made by law enforcement officers during that year 31
on the basis (wholly or partly) of information obtained by the use of a 32
surveillance device under a surveillance device warrant or emergency 33
authorisation issued in this jurisdiction and executed in a participating 34
jurisdiction, 35
(b5) the number of prosecutions that were commenced in this jurisdiction 36
during that year in which information obtained by the use of a 37
surveillance device under a surveillance device warrant or emergency 38
authorisation issued in this jurisdiction and executed in a participating 39
jurisdiction was given in evidence, and the number of those 40
prosecutions in which a person was found guilty, 41
[11] Section 45 (2) 42
Omit "subsection (1) (a) and (b)". Insert instead "subsection (1) (a)-(b3)". 43
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Surveillance Devices Amendment (Mutual Recognition) Bill 2013 [NSW]
Schedule 1 Amendment of Surveillance Devices Act 2007 No 64
[12] Section 46 Keeping documents and records connected with warrants and 1
emergency authorisations executed in this jurisdiction 2
Insert "for the use or retrieval of surveillance devices in this jurisdiction" after "agency" 3
where thirdly occurring. 4
[13] Section 46A 5
Insert after section 46: 6
46A Keeping documents and records connected with warrants and emergency 7
authorisations executed in participating jurisdictions 8
(1) The chief officer of a law enforcement agency must cause a copy of the 9
following documents to be kept in relation to the use or retrieval of a 10
surveillance device in a participating jurisdiction: 11
(a) each warrant issued to a law enforcement officer of the agency, 12
(b) each notice given to the chief officer of the revocation of a warrant, 13
(c) each emergency authorisation given to a law enforcement officer of the 14
agency, 15
(d) each application made by a law enforcement officer of the agency for 16
an emergency authorisation, 17
(e) each application made by a law enforcement officer of the agency for: 18
(i) a warrant, or 19
(ii) an extension, variation or revocation of a warrant, or 20
(iii) approval of the exercise of powers under an emergency 21
authorisation, 22
(f) each report made to a Judge or Magistrate under section 44, 23
(g) each certificate issued by a senior officer of the agency under section 50. 24
(2) The chief officer of a law enforcement agency must cause the following 25
information to be kept in relation to the use or retrieval of a surveillance device 26
in a participating jurisdiction: 27
(a) a statement as to whether each application made by a law enforcement 28
officer of the agency for a warrant, or the extension, variation or 29
revocation of a warrant, was granted, refused or withdrawn, 30
(b) a statement as to whether each application made by a law enforcement 31
officer of the agency for an emergency authorisation, or for approval of 32
powers exercised under an emergency authorisation, was granted, 33
refused or withdrawn, 34
(c) details of each use by the agency, or by a law enforcement officer of the 35
agency, of information obtained by the use of a surveillance device by 36
a law enforcement officer of the agency, 37
(d) details of each communication by a law enforcement officer of the 38
agency to a person other than a law enforcement officer of the agency 39
of information obtained by the use of a surveillance device by a law 40
enforcement officer of the agency, 41
(e) details of each occasion when, to the knowledge of a law enforcement 42
officer of the agency, information obtained by the use of a surveillance 43
device by a law enforcement officer of the agency was given in 44
evidence in a relevant proceeding, 45
(f) details of the destruction of records or reports under section 41 (1) (b). 46
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Surveillance Devices Amendment (Mutual Recognition) Bill 2013 [NSW]
Schedule 1 Amendment of Surveillance Devices Act 2007 No 64
[14] Schedule 1 Savings, transitional and other provisions 1
Omit clause 1 (1). Insert instead: 2
(1) The regulations may contain provisions of a savings or transitional nature 3
consequent on the enactment of this Act or any Act that amends this Act. 4
Page 6
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