New South Wales Consolidated Acts

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SURVEILLANCE DEVICES ACT 2007 - SECT 8

Installation, use and maintenance of optical surveillance devices without consent

8 Installation, use and maintenance of optical surveillance devices without consent

(1) A person must not knowingly install, use or maintain an optical surveillance device on or within premises or a vehicle or on any other object, to record visually or observe the carrying on of an activity if the installation, use or maintenance of the device involves--
(a) entry onto or into the premises or vehicle without the express or implied consent of the owner or occupier of the premises or vehicle, or
(b) interference with the vehicle or other object without the express or implied consent of the person having lawful possession or lawful control of the vehicle or object.
: Maximum penalty--500 penalty units (in the case of a corporation) or 100 penalty units or 5 years imprisonment, or both (in any other case).
(2) Subsection (1) does not apply to the following--
(a) the installation, use or maintenance of an optical surveillance device in accordance with a warrant, emergency authorisation, corresponding warrant or corresponding emergency authorisation,
(b) the installation, use or maintenance of an optical surveillance device in accordance with a law of the Commonwealth,
(c) the use of an optical surveillance device and any enhancement equipment in relation to the device solely for the purpose of the location and retrieval of the device or equipment,
(d) the installation, use or maintenance of an optical surveillance device by a law enforcement officer in the execution of a search warrant or crime scene warrant (including the use of an optical surveillance device to record any activity in connection with the execution of the warrant),
Note : See also section 255 of the Children and Young Persons (Care and Protection) Act 1998 .
(d1) the use of an optical surveillance device by a law enforcement officer in the conduct of a search or inspection (including the use of an optical surveillance device to record any activity in connection with the search or inspection) that is permitted without a warrant under the following--
(i) the Child Protection (Offenders Registration) Act 2000 ,
(ii) the Firearms Act 1996 ,
(iii) the Restricted Premises Act 1943 ,
(iv) the Terrorism (Police Powers) Act 2002 ,
(e) the use of an optical surveillance device, being a device integrated into a Taser issued to a member of the NSW Police Force, to record the operation of the Taser and the circumstances surrounding its operation,
(f) the use, in accordance with section 50A, of body-worn video by a police officer.
(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.
(3) In this section--

"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 .

"crime scene warrant" has the same meaning as it has in the Law Enforcement (Powers and Responsibilities) Act 2002 .

"search warrant" means a search warrant issued under--
(a) any of the following provisions of the Law Enforcement (Powers and Responsibilities) Act 2002 --
(i) Division 2 (Police powers relating to warrants) of Part 5,
(ii) Part 6 (Search, entry and seizure powers relating to domestic violence offences),
(iii) Division 1 (Drug premises) of Part 11, or
(a1) a provision specified in Schedule 2 to the Law Enforcement (Powers and Responsibilities) Act 2002 , or
(a2) Part 3 (Covert search warrants) of the Terrorism (Police Powers) Act 2002 , or
(b) section 40 of the Independent Commission Against Corruption Act 1988 , or
(c) section 17 of the Crime Commission Act 2012 , or
(d) Division 2 or 3 of Part 4 of the Criminal Assets Recovery Act 1990 ,
(e) section 79 of the Law Enforcement Conduct Commission Act 2016 .



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