New South Wales Consolidated Acts

SURVEILLANCE DEVICES ACT 2007 - SECT 17

17 Application for a surveillance device warrant

(1) A law enforcement officer (or another person on his or her behalf) may apply for the issue of a surveillance device warrant if the law enforcement officer on reasonable grounds suspects or believes that--

(a) a relevant offence has been, is being, is about to be or is likely to be committed, and

(b) an investigation into that offence is being, will be or is likely to be conducted in this jurisdiction or in this jurisdiction and in one or more participating jurisdictions, and

(c) the use of a surveillance device is necessary for the purpose of an investigation into that offence to enable evidence to be obtained of the commission of that offence or the identity or location of the offender.

(1A) A law enforcement officer (or another person on his or her behalf) may also apply for the issue of a surveillance device warrant for the use of a surveillance device in a correctional centre if the law enforcement officer on reasonable grounds suspects or believes that--

(a) an eligible offender within the meaning of the Terrorism (High Risk Offenders) Act 2017 is an inmate of the correctional centre, and

(b) an investigation is being, will be or is likely to be conducted into whether an application for a supervision or detention order should be made under the Terrorism (High Risk Offenders) Act 2017 in respect of the offender on the basis that the offender is a terrorism related offender, and

(c) the use of a surveillance device is necessary for the purpose of an investigation into whether an application for a supervision or detention order under the Terrorism (High Risk Offenders) Act 2017 should be made to enable evidence to be obtained that would be likely to support the application.

(2) The application may be made to--

(a) an eligible Judge in any case, or

(b) an eligible Magistrate in the case of an application for a surveillance device warrant authorising the use of a tracking device only.

(3) The application must be in the form of an affidavit that--

(a) includes the information required to complete the surveillance device warrant particulars, and

(b) sets out the grounds on which the warrant is sought, and

(c) sets out the details of any 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, and

(d) states whether any attempts have been made to use an alternative means and, if so, the result of the attempts, and

(e) sets out the details of any previous warrant or emergency authorisation sought or issued under this Act in relation to the relevant offence, and

(f) as far as reasonably practicable, identifies persons who may be incidentally recorded by the surveillance device, and

(g) 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.

(4) The application may be made in a form other than an affidavit if the law enforcement officer believes that--

(a) the immediate use of a surveillance device is necessary for a purpose referred to in subsection (1)(c) or (1A)(c), and

(b) it is impracticable for the application to be prepared and sworn in the form of an affidavit for the purpose of making the application as required by subsection (3).

(5) If subsection (4) applies, the applicant must--

(a) provide the eligible Judge or eligible Magistrate with any information the eligible Judge or eligible Magistrate considers is reasonably practicable in the circumstances, and

(b) within 72 hours after making the application, send a duly sworn affidavit that includes the information required under subsection (3) to the eligible Judge or eligible Magistrate, whether or not a warrant has been issued.

(5A) A notice containing the information required under subsection (3) must also be served on the Attorney General.

(6) An application for a warrant is not to be heard in open court.