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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Surveillance Devices Amendment (Statutory
Review) Bill 2018
Contents
Page
1 Name of Act 2
2 Commencement 2
Schedule 1 Amendment of Surveillance Devices Act 2007 No 64 3
Schedule 2 Amendment of Law Enforcement (Controlled Operations) Act 1997
No 136 10
I certify that this public bill, which originated in the Legislative Assembly, has finally passed
the Legislative Council and the Legislative Assembly of New South Wales.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2018
New South Wales
Surveillance Devices Amendment (Statutory
Review) Bill 2018
Act No , 2018
An Act to make miscellaneous amendments to the Surveillance Devices Act 2007 following the
statutory review of that Act; and to amend the Law Enforcement (Controlled Operations) Act 1997
with respect to applications for authorities to conduct a controlled operation involving the use,
without a warrant, of a surveillance device.
See also the Road Transport Amendment (National Facial Biometric Matching Capability) Act 2018 and the
Terrorism (Police Powers) Amendment (Statutory Review) Act 2018.
I have examined this bill and find it to correspond in all respects with the bill as finally
passed by both Houses.
Assistant Speaker of the Legislative Assembly.
Surveillance Devices Amendment (Statutory Review) Bill 2018 [NSW]
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Surveillance Devices Amendment (Statutory Review) Act 2018.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
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Surveillance Devices Amendment (Statutory Review) Bill 2018 [NSW]
Schedule 1 Amendment of Surveillance Devices Act 2007 No 64
Schedule 1 Amendment of Surveillance Devices Act 2007
No 64
[1] Section 2A
Insert after section 2:
2A Objects of Act
The objects of this Act are:
(a) to provide law enforcement agencies with a comprehensive framework
for the use of surveillance devices in criminal investigations, and
(b) to enable law enforcement agencies to covertly gather evidence for the
purposes of criminal prosecutions, and
(c) to ensure that the privacy of individuals is not unnecessarily impinged
upon by providing strict requirements around the installation, use and
maintenance of surveillance devices.
[2] Section 4 Definitions
Insert in alphabetical order in section 4 (1):
Surveillance Devices Commissioner means the Surveillance Devices
Commissioner appointed under section 51A.
[3] Section 8 Installation, use and maintenance of optical surveillance devices without
consent
Insert after section 8 (2):
(2A) Subsection (1) does not apply to the use of an optical surveillance device to
record visually or observe the carrying on of an activity if:
(a) a party to the activity is a participant in an authorised operation and, if
the participant is a law enforcement officer, the participant is using an
assumed name or assumed identity, and
(b) the person using the optical surveillance device is that participant or
another participant in that authorised operation.
[4] Section 8 (3)
Insert in alphabetical order:
authorised operation and participant in an authorised operation have the
same meanings as in the Law Enforcement (Controlled Operations) Act 1997.
Note. The definition of participant in an authorised operation includes a civilian
participant within the meaning of the Law Enforcement (Controlled Operations) Act
1997.
[5] Section 17 Application for a surveillance device warrant
Omit section 17 (3). Insert instead:
(3) An application must include the following information:
(a) the information required (having regard to the warrant being sought) to
complete the surveillance device warrant particulars set out in
section 20 (1),
(b) details of any other alternative means of obtaining the evidence or
information sought under the warrant and the extent to which those
means may assist or prejudice the investigation,
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Surveillance Devices Amendment (Statutory Review) Bill 2018 [NSW]
Schedule 1 Amendment of Surveillance Devices Act 2007 No 64
(c) whether an attempt has been made to use an alternative means and, if
so, the result of the attempts,
(d) details of any previous warrant or emergency authorisation sought or
issued under this Act in connection with the same relevant offence.
(3A) Subject to this section, an application must be accompanied by an affidavit
that:
(a) supports the application and sets out the grounds on which the warrant
is sought, and
(b) as far as reasonably practicable identifies persons who may be
incidentally recorded by the surveillance device, and
(c) includes any information known to the applicant that may be adverse to
the warrant application or, if no adverse information is known, a
statement to that effect.
[6] Section 17 (5A)
Insert after section 17 (5):
(5A) A notice containing the information in subsections (3) and (3A) (b) and (c)
must also be served on the Attorney General.
[7] Section 19 Determining an application
Insert at the end of section 19 (1) (c):
, and
(d) except in the case of a remote application--the notice referred to in
section 17 (5A) has been served on the Attorney General, and
(e) in the case of a remote application--the Attorney General has been
notified of the application and been given as much of the information
required to be included in the notice referred to in section 17 (5A) as it
is reasonable to provide in the circumstances, and
(f) the Attorney General has had an opportunity to be heard in relation to
the granting of the warrant.
[8] Section 20 Contents of surveillance device warrants
Omit section 20 (1) and (2). Insert instead:
(1) A surveillance device warrant must specify the following (the surveillance
device warrant particulars):
(a) the name of the applicant,
(b) the alleged relevant offence in respect of which the warrant is issued,
(c) the kind of surveillance device authorised to be used,
(d) if the warrant authorises the use of a surveillance device on or in
premises or a vehicle--the premises or vehicle on or in which the use of
the surveillance device is authorised,
(e) if the warrant authorises the use of a surveillance device in or on an
object or class of object--the object or class of object in or on which the
use of the surveillance device is authorised,
(f) if the warrant authorises the use of a surveillance device on or about the
body of a person--the name of the person (or, if the identity of the
person is unknown, that fact),
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Surveillance Devices Amendment (Statutory Review) Bill 2018 [NSW]
Schedule 1 Amendment of Surveillance Devices Act 2007 No 64
(g) if the warrant authorises the use of a surveillance device in respect of
the conversations, activities or geographical location of a person--the
name of the person (if known),
(h) the name of the law enforcement officer primarily responsible for
executing the warrant,
(i) the period during which the warrant is to be in force, being a period not
exceeding 90 days.
(2) A warrant must also include the following:
(a) a statement that the eligible Judge or eligible Magistrate is satisfied of
the matters referred to in section 19 (1) and has had regard to the matters
referred to in section 19 (2),
(b) the date the warrant is issued,
(c) the date on which the warrant commences, being not more than 10 days
after the date on which the warrant is issued,
(d) details of any conditions subject to which premises or a vehicle may be
entered, or a surveillance device used, under the warrant,
(e) the period within which a report about the use of the surveillance device
authorised by the warrant must be furnished to the eligible Judge or
eligible Magistrate under section 44 (1), being a period that expires not
less than 60 days after the expiry of the warrant.
[9] Section 24 Discontinuance of use of surveillance device under warrant
Insert after section 24 (2):
(2A) The chief officer of the law enforcement agency is not required to cause an
application to be made for the revocation of a warrant under section 23 if the
warrant will cease to be in force within 5 days after the day on which the chief
officer became satisfied the use of a surveillance device under the warrant was
no longer necessary.
[10] Section 25 Application for a retrieval warrant
Omit section 25 (3). Insert instead:
(3) An application must include the information required (having regard to the
warrant being sought) to complete the retrieval warrant particulars set out in
section 28 (1).
(3A) Subject to this section, an application must be accompanied by an affidavit
that:
(a) supports the application and sets out the grounds on which the warrant
is sought, and
(b) includes any information known to the applicant that may be adverse to
the warrant application or, if no adverse information is known, a
statement to that effect.
[11] Section 25 (5A)
Insert after section 25 (5):
(5A) A notice containing the information in subsections (3) and (3A) (b) must also
be served on the Attorney General.
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Surveillance Devices Amendment (Statutory Review) Bill 2018 [NSW]
Schedule 1 Amendment of Surveillance Devices Act 2007 No 64
[12] Section 27 Determining an application
Insert at the end of section 27 (1) (c):
, and
(d) except in the case of a remote application--the notice referred to in
section 25 (5A) has been served on the Attorney General, and
(e) in the case of a remote application--the Attorney General has been
notified of the application and been given as much of the information
required to be included in the notice referred to in section 25 (5A) as it
is reasonable to provide in the circumstances, and
(f) the Attorney General has had an opportunity to be heard in relation to
the granting of the warrant.
[13] Section 28 Contents of retrieval warrants
Omit section 28 (1). Insert instead:
(1) A retrieval warrant must specify the following (the retrieval warrant
particulars):
(a) the name of the applicant,
(b) the kind of surveillance device authorised to be retrieved,
(c) the premises, vehicle or other object from which the surveillance device
is to be retrieved,
(d) the name of the law enforcement officer primarily responsible for
executing the warrant,
(e) the period during which the warrant is to be in force, being a period not
exceeding 90 days.
(1A) A warrant must also include the following:
(a) a statement that the eligible Judge or eligible Magistrate is satisfied of
the matters referred to in section 27 (1) and has had regard to the matters
referred to in section 27 (2),
(b) the date the warrant is issued,
(c) the date on which the warrant commences, being not more than 10 days
after the date on which the warrant is issued,
(d) details of any conditions subject to which premises or a vehicle may be
entered under the warrant,
(e) the period within which a report about the use of the surveillance device
authorised by the warrant must be furnished to the eligible Judge or
eligible Magistrate under section 44 (1), being a period that expires not
less than 60 days after the expiry of the warrant.
[14] Section 33 Application for approval after use of surveillance device without warrant
or under emergency authorisation
Omit section 33 (3). Insert instead:
(3) An application for approval must:
(a) include the name of the applicant, and
(b) specify the kind of surveillance device sought to be approved, and
(c) be supported by an affidavit setting out the grounds on which the
approval is sought.
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Surveillance Devices Amendment (Statutory Review) Bill 2018 [NSW]
Schedule 1 Amendment of Surveillance Devices Act 2007 No 64
(3A) An application for approval may also be accompanied by an application for a
surveillance device warrant made in accordance with Division 2.
[15] Section 35 Eligible Judge may approve emergency use of powers
Omit section 35 (3). Insert instead:
(3) If the application under section 33 is accompanied by an application for a
surveillance device warrant, the application for the warrant may be determined
at the same time as the application for approval but is to be determined in
accordance with Division 2.
[16] Section 39 What is protected information?
Insert "or 8 (2A)" after "section 7 (4)" in paragraph (c) of the definition of protected
information.
[17] Section 41 Dealing with records obtained by use of surveillance devices
Insert "or as referred to in section 7 (4) or 8 (2A)" after "in an emergency" in
section 41 (1) (a).
[18] Section 45A
Insert after section 45:
45A Annual report of Department
(1) The annual report of the Department of Justice must set out the following in
relation to surveillance device warrants and retrieval warrants for the period to
which the report relates:
(a) the number of matters in which the advice of the Attorney General has
been sought in respect of a prospective application for a warrant,
(b) the number of applications for a warrant that have been made,
(c) the number of applications in which the Attorney General was heard
before the Judge or Magistrate in the determination of the application,
(d) the number of applications that were withdrawn before being
determined,
(e) the number of applications that were refused,
(f) the number of warrants in respect of which a direction was given under
section 52 (1) to supply information to a person about the warrant or use
of a surveillance device (or both).
Note. References to the Attorney General in this subsection include persons acting
under delegation from the Attorney General. See section 49 (6) of the Interpretation Act
1987.
(2) The Attorney General is to ensure that, as far as reasonably practicable,
information is provided for the purposes of subsection (1).
[19] Sections 51A and 51B
Omit section 51. Insert instead:
51A Surveillance Devices Commissioner
(1) The Secretary of the Department of Justice, in consultation with the Minister,
must appoint a Surveillance Devices Commissioner.
(2) The Surveillance Devices Commissioner is to be employed in the Public
Service.
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Surveillance Devices Amendment (Statutory Review) Bill 2018 [NSW]
Schedule 1 Amendment of Surveillance Devices Act 2007 No 64
(3) A person cannot be employed as the Surveillance Devices Commissioner
unless the person is:
(a) an Australian legal practitioner with at least 7 years legal practice
experience, and
(b) either:
(i) a Judge or other judicial officer, or a former Judge or judicial
officer, of a superior court of record of the State or of any other
State or Territory or of Australia, or
(ii) qualified to be appointed as a Judge or other judicial officer of a
court referred to in subparagraph (i).
(4) The Surveillance Devices Commissioner has the functions conferred or
imposed on the Commissioner by or under this Act or any other Act.
51B Delegation
The Attorney General may delegate the exercise of any function of the
Attorney General under Part 3 or 5 of this Act (other than this power of
delegation) to:
(a) the Surveillance Devices Commissioner, or
(b) the Solicitor General, or
(c) the Crown Advocate, or
(d) a person, or a class of persons, authorised for the purposes of this section
by the regulations.
[20] Section 53 Use of assumed names or code-names in warrant
Omit "under section 51" from section 53 (2).
Insert instead "served on the Attorney General".
[21] Section 59 Regulations
Insert after section 59 (1):
(1A) The regulations may prescribe the form in which an application under this Act
is to be made.
[22] Schedule 1 Savings, transitional and other provisions
Insert after Part 3:
Part 4 Provisions consequent on enactment of
Surveillance Devices Amendment (Statutory
Review) Act 2018
8 Definitions
In this Part:
amending Act means the Surveillance Devices Amendment (Statutory Review)
Act 2018.
commencement day means the day on which the amending Act commences.
9 Applications made before commencement day
An application for a warrant made but not decided before the commencement
day is to be determined as if the amending Act had not commenced.
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Surveillance Devices Amendment (Statutory Review) Bill 2018 [NSW]
Schedule 1 Amendment of Surveillance Devices Act 2007 No 64
10 Application for revocation of warrant
Section 24 (2A) extends to a warrant issued before the commencement day.
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Surveillance Devices Amendment (Statutory Review) Bill 2018 [NSW]
Schedule 2 Amendment of Law Enforcement (Controlled Operations) Act 1997 No 136
Schedule 2 Amendment of Law Enforcement (Controlled
Operations) Act 1997 No 136
Section 5 Applications for authorities
Insert after section 5 (2A) (e):
(f) details of the proposed use of a listening device or optical surveillance
device (within the meaning of the Surveillance Devices Act 2007) if the
use will be carried out other than in accordance with a surveillance
device warrant under that Act.
Page 10
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