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Surveillance Devices (Amendment) Bill
As Sent Print
Victorian Legislation Parliamentary Documents
EXPLANATORY MEMORANDUM
General
This Bill implements national model legislation that was developed by a Joint
Working Group of the Standing Committee of Attorneys-General and the
Australasian Police Ministers' Council to facilitate the use of surveillance
devices by law enforcement agencies in cross-border investigations.
The model law was published in November 2003 in the Joint Working
Group's Report on Cross-Border Investigative Powers for Law Enforcement.
To simplify the regulatory regime in Victoria, the Bill implements the model
legislation not only in relation to cross-border investigations, but also
(wherever possible) to local investigations. This will mean that law
enforcement officers will be able to obtain one warrant that will apply locally
and in other participating jurisdictions (once those jurisdictions also enact the
model).
Clause Notes
Clause 1 sets out the main purpose of the Bill, which is to amend the
Surveillance Devices Act 1999 ("SDA")--
· with respect to warrants and emergency authorisations
for the use of surveillance devices; and
· to recognise warrants and emergency authorisations that
have been issued in other jurisdictions.
Clause 2 provides for the commencement of the Bill. The Bill includes an
open-ended proclamation provision. This is necessary because,
in order for the provisions of the Bill that confer powers and
duties on officers of the Australian Crime Commission to be
effective, the Commonwealth Government will need to make
regulations under the Australian Crime Commission Act 2002
(Cth). In addition, the Commonwealth Parliament will need to
pass legislation to enable the Commonwealth Ombudsman to
perform proposed functions under the Bill.
Clause 3 defines the SDA as the Principal Act.
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551145 BILL LA AS SENT 7/5/2004
Clause 4 amends the purposes of the SDA to include, among other things,
the recognition of warrants and emergency authorisations that are
issued in other jurisdictions for the installation and use of
surveillance devices. The recognition of these corresponding
warrants and corresponding emergency authorisations will be set
Victorian Legislation Parliamentary Documents
out in new Part 4A of the SDA.
Clause 5 inserts a series of definitions into the SDA. It also substitutes a
number of existing definitions with new definitions.
A new definition of "corresponding emergency authorisation"
will be inserted into the SDA. It will mean an emergency
authorisation given under a corresponding law for a relevant
offence under that law (see below for the meaning of
"corresponding law" and "relevant offence"). The mutual
recognition provisions in new Part 4A of the SDA will enable
corresponding emergency authorisations to be executed in
Victoria as if they had been given under the SDA.
A new definition of "corresponding law" will be inserted into
the SDA. It will mean a law of another jurisdiction that provides
for the authorisation of the use of surveillance devices and is
declared by the regulations to be a corresponding law.
This process will enable Victoria to recognise as valid the laws
of other jurisdictions that implement the model provisions.
A new definition of "corresponding warrant" will be inserted into
the SDA. It will mean a warrant issued under a corresponding
law for a relevant offence under that law. The mutual
recognition provisions in new Part 4A enable corresponding
warrants to be executed in Victoria as if they had been issued
under the SDA.
A new definition of "relevant offence" will be inserted into the
SDA. It will mean an offence that is punishable by a maximum
penalty of 3 years imprisonment or more, or an offence
prescribed by the regulations.
Under the model law, a surveillance device warrant can only be
obtained in relation to offences that fall within the definition of
"relevant offence". However, under the existing SDA, warrants
can be obtained in connection with the investigation of any
offence. The Bill reconciles this difference by ensuring that
Victorian law enforcement officers can continue to obtain
warrants for offences under the 3-year threshold. However, to be
consistent with the model law, these warrants will apply in
Victoria only, unless the offence is prescribed by regulation.
This is reflected in new section 19(7)(b) of the SDA, which states
that a surveillance device warrant that is issued for an offence
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that is not a relevant offence cannot authorise the installation and
use of a surveillance device outside Victoria.
To be consistent with the model law, a corresponding warrant or
corresponding emergency authorisation will only be recognised
Victorian Legislation Parliamentary Documents
as valid in Victoria if it was issued or given for a relevant offence
under the relevant corresponding law. This is reflected in the
definition of these terms.
A new definition of "relevant Ombudsman" will be inserted into
the SDA. The definition is relevant to the new oversight powers
of the Victorian and Commonwealth Ombudsman in new
sections 30P and 30Q. The Victorian Ombudsman will be
responsible for inspecting the records of Victorian law
enforcement agencies, namely Victoria Police, the Department of
Primary Industries and the Department of Sustainability and
Environment, and reporting to Parliament on their compliance
with the SDA. The Commonwealth Ombudsman will be
responsible for inspecting the records of the Australian Crime
Commission and reporting to Parliament on its compliance with
the SDA.
A new definition of "relevant proceeding" will be inserted into
the SDA. The definition will be used in the new Division 1 of
Part 5 of the SDA to refer to the specific proceedings in which
protected information may be used, communicated or published
under the SDA (see new sections 30F(1)(c) and 30G(1)(c)).
"Protected information" is defined in new section 30D.
The current definition of "chief law enforcement officer" will be
replaced by a new definition of "chief officer". The chief officer
has particular responsibilities under the new sections of the SDA,
namely to--
· take steps to discontinue the use of surveillance devices
under warrants and to revoke those warrants where the
use of the device is no longer necessary (see new
section 20B);
· ensure that records obtained by the use of surveillance
devices are kept securely and, where appropriate,
destroyed (see new section 30H);
· submit an annual report to the Minister (see new
section 30L);
· cause certain records and documents as well as a
register of warrants and emergency authorisations to be
kept (see new sections 30M, 30N, 30O).
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The current definition of "law enforcement officer" will be
replaced by a broader definition. The changes relate to the
Australian Crime Commission. The current definition applies
only to members of staff of the Australian Crime Commission
who are members of a State, Territory or Commonwealth police
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force. The new definition will also apply to members of staff of
the Australian Crime Commission who are not members of a
police force, and people who are seconded to a law enforcement
agency.
For consistency with the model law, the current definition of
"listening device" will be replaced by a new definition that does
not incorporate the notion of a private conversation. This does
not alter the regulation of the installation, use and maintenance of
listening devices (Part 2 of the SDA) or the restrictions on
communicating and publishing private conversations (Part 3 of
the SDA).
For consistency with the model law, the current definition of
"optical surveillance device" will be replaced by a new definition
that does not incorporate the notion of a private activity.
This does not alter the regulation of the installation, use and
maintenance of optical surveillance devices (Part 2 of the SDA)
or the restrictions on communicating and publishing private
activities (Part 3 of the SDA).
The current definition of "senior law enforcement officer" will be
replaced by a new definition of "senior officer". The change
relates to the Australian Crime Commission. Currently, "senior
law enforcement officer" is defined as the Chief Executive
Officer or an examiner. The new definition will list the Chief
Executive Officer, the Director National Operations, the General
Manager National Operations, and Senior Executive Service
(SES) positions that are prescribed by the regulations. A senior
officer has particular responsibilities under the new sections of
the SDA, namely to--
· give emergency authorisations (see new sections 26(3)
and 27(3));
· apply to a Supreme Court judge for approval of
emergency authorisations (see new section 28(1));
· issue evidentiary certificates (see new section 36).
For consistency with the model law, the current definition of
"surveillance device" will be replaced by a new definition.
The new definition retains the reference to the four devices that
are currently listed (data surveillance device, listening device,
optical surveillance device and tracking device), but also includes
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a device that is a combination of two or more of the devices
referred to above, or a device that is prescribed by the
regulations. The ability to prescribe new kinds of surveillance
devices is designed to ensure that the SDA is more flexible and
responsive to changes in surveillance technologies.
Victorian Legislation Parliamentary Documents
Clause 6 inserts a new section 5A in Part 1 of the SDA concerning the
application of the Act.
Clause 7 amends the body corporate penalty in sections 6(1), 7(1) and 8(1)
of the SDA. It also amends sections 6(2)(a), 7(2)(a), 8(2)(a) and
9(2)(a) to incorporate the concept of a corresponding warrant and
a corresponding emergency authorisation.
Clause 7 also inserts a new section 6(2)(c) into the SDA.
Currently, section 6 of the SDA permits a party to a private
conversation to use a listening device to record that conversation
without the knowledge of the other parties. This enables an
undercover law enforcement officer, for example, to record his or
her private conversation with a potential suspect, without having
to obtain a warrant.
New section 6(2)(c) will permit a law enforcement officer to use
a listening device to monitor or record a private conversation to
which he or she is not a party if--
· a participant to the conversation consents; and
· the officer is acting in the course of his or her duty; and
· the officer reasonably believes that monitoring or
recording the conversation is necessary to protect any
person's safety.
This amendment is designed to enable a law enforcement agency
to remotely monitor and record conversations involving their
members (and civilians who are assisting the agency) to ensure
their safety, without having to obtain a warrant.
Lastly, clause 7 repeals section 10 of the SDA concerning the
authority for assistance and for others to use surveillance devices.
The authority to provide assistance or technical expertise to the
law enforcement officer responsible for executing the warrant
will be provided by new sections 19(3)(g) and 20G(1)(e).
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Clause 8 makes some minor amendments to sections 11 and 12 of the
SDA. These include amendments to the body corporate penalty
in section 11 and consequential amendments because of new
terminology. Sections 11(2) and 12(2) are amended to avoid an
overlap of offences between sections 11 and 12 and new
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section 30E.
Clause 9 substitutes Division 1 in Part 4 of the SDA concerning warrants.
Subdivision 1--Introduction
New section 13 sets out the types of warrant that may be
obtained: a surveillance device warrant and a retrieval warrant.
A surveillance device warrant may be issued in respect of a data
surveillance device, a listening device, an optical surveillance
device or a tracking device, or a device that is a combination of
any two or more of those devices. The warrant must specify the
kind of surveillance device authorised to be used (see new
section 18(1)(b)(iv)). Having one generic warrant will make the
regime less complicated than the current SDA, where a different
warrant has to be obtained in relation to each kind of device or
combination device.
Like the current SDA, a retrieval warrant may also be issued.
A retrieval warrant authorises the retrieval of a surveillance
device when the warrant under which the device was installed
has expired or is no longer applicable. For example, the device
may be located in different premises from those initially
authorised under the surveillance device warrant, or the initial
warrant may have expired before the law enforcement agency
was able to retrieve the device.
New section 14 provides that a Supreme Court judge can deal
with an application for any warrant, whereas a magistrate has the
power to issue warrants for tracking devices only.
Subdivision 2--Surveillance Device Warrants
New section 15 concerns the application process for a
surveillance device warrant. It is based on the existing
application procedure in the SDA. A law enforcement officer (or
a person on their behalf) may apply for a surveillance device
warrant if he or she has reasonable grounds to suspect or believe
that an offence has been, is being, is about to be or is likely to be
committed, and that the use of a surveillance device is or will be
necessary to investigate that offence, to gather evidence or
information, or determine the identity or location of the offender.
The application must specify the applicant's name and the nature
and duration of the warrant sought (including the kind of
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surveillance device to be authorised) and be supported by an
affidavit. Warrant applications are not to be heard in open court.
New section 16 concerns remote applications. This enables
warrant applications to be made by telephone, facsimile, e-mail
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or other means of communication where it is impracticable for
the law enforcement officer to apply in person. For example, an
officer may be in a remote location and unable to access the
court. This section mirrors the existing ability to make telephone
applications under the SDA.
New section 17 sets out the matters the judge or magistrate must
take into account when determining warrant applications.
They are essentially the same matters the court must currently
consider under the SDA.
New section 18 sets out what a surveillance device warrant must
specify. This section is based on the existing requirements in the
SDA, with the following changes--
· the warrant must contain a recital confirming that the
judge or magistrate is satisfied of, and has had regard to,
the matters in new section 17;
· the applicant must be named in the warrant;
· instead of naming any law enforcement officer who may
use a surveillance device under the warrant, the warrant
must now name the officer primarily responsible for
executing the warrant;
· the warrant must specify the date the warrant was
issued;
· the issuer must sign the warrant.
New section 19 details what a surveillance device warrant
authorises. This section is based on the existing authority under a
warrant in the SDA with some modifications.
A warrant will authorise a surveillance device to be installed,
used, maintained and retrieved in relation to particular premises,
an object or class of object, or a person. Compared to the
existing SDA, the authority to install, use, maintain and retrieve a
device in or on an object will be broadened to include a class of
object. This is to address a difficulty raised by law enforcement
agencies when they apply for object warrants. Currently, they
are required to specify the object in the warrant application, for
example, a piece of clothing. However, at the time they install
the device, that specified piece of clothing may no longer be
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accessible or appropriate. In these circumstances, continually
returning to the court for an additional warrant is a waste of
resources. Broadening the authority to include a class of object
will overcome this problem.
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Installing a surveillance device often requires law enforcement
officers to take certain ancillary action such as entering (by force
if necessary) premises adjoining or providing access to the target
premises, or temporarily removing an object from premises in
order to install or retrieve the device. Under the existing SDA, a
judge may issue a warrant authorising such acts. This will also
be the case under new section 19.
It is not always practical to operate surveillance devices using
batteries, particularly where protracted surveillance is
undertaken. Under the existing SDA, a warrant in relation to
specified premises authorises the connection of the device to an
electricity or telephone supply system and the use of the system
to operate the device. Under new section 19, the authority to use
an electricity or telephone supply system to operate the device
will be broadened to also apply to warrants in relation to
specified objects or persons. For example, the police may obtain
a warrant to install a device on a "pill press" that is used to make
ecstasy tablets. The warrant will now enable them to draw on the
electricity that powers the press to power the device.
Furthermore, the authority to use a telephone system will be
broadened to "any object or system" that can be used to transmit
surveillance device information or operate the device. This will
apply to all warrants (for premises, objects or persons). It will
enable the law enforcement agency to use systems such as
wireless technology in order to transmit surveillance device
product back to the agency, and to operate the device.
On occasion, law enforcement officers require assistance or
technical expertise in installing and using surveillance devices.
For example, where the person under surveillance speaks another
language, interpreters are needed to translate. In other cases,
electronic engineers may be needed. Joint operations may
require law enforcement officers from other jurisdictions to
monitor conversations. As in the existing SDA, the provision of
such assistance and technical expertise will be permitted under
the warrant.
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Because of the covert nature of the surveillance, the warrant may
also authorise the doing of anything reasonably necessary to
conceal the fact that anything has been done in relation to the
installation, use, maintenance or retrieval of a surveillance
device. This would enable police officers, for example, to
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disable an alarm system in order to install the device. There is no
equivalent provision in the existing SDA.
The authority under a warrant is subject to any conditions that are
specified in the warrant.
In accordance with sub-section (7), a warrant cannot authorise a
surveillance device to be installed or used outside Victoria if the
warrant application is made by a fisheries or wildlife officer or if
the offence in relation to which the warrant is issued is not a
relevant offence (see the new Definitions for the meaning of
"relevant offence"). This is to ensure consistency with the model
law concerning cross-border investigations, which does not
extend to fisheries or wildlife officers or to offences that fall
outside the definition of "relevant offence". This limitation of
what the warrant authorises is important for mutual recognition,
because other jurisdictions will recognise a Victorian warrant
in accordance with its terms (see Part 4A, which implements the
model mutual recognition provisions that other jurisdictions will
also enact).
New section 20 permits a law enforcement officer who has been
issued with a surveillance device warrant to apply to a Supreme
Court judge or a magistrate (depending on who issued the
warrant) to extend or vary the warrant. There is no equivalent
provision in the existing SDA (although nothing currently
prevents the issue of a further warrant for an offence or device in
respect of which a warrant has previously been issued).
New section 20A provides that a Supreme Court judge or a
magistrate (depending on who issued the warrant) can revoke
a surveillance device warrant at any time before it expires.
New section 20A also obliges the chief officer of a law
enforcement agency to revoke a surveillance device warrant in
certain circumstances that are set out in new section 20B(2).
New section 20B imposes obligations on the chief officer of a
law enforcement agency to ensure that the use of a surveillance
device is discontinued and the surveillance device warrant is
revoked under new section 20A(2), if the use of the device is no
longer necessary. The obligation to discontinue using the device
also applies if a judge or magistrate under new section 20A(1)
has revoked the warrant. Because the chief officer may not know
whether the use of a surveillance device continues to be justified,
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the law enforcement officer who is issued with the warrant, or
who is primarily responsible for executing it, must immediately
inform the chief officer if he or she believes the use of the device
is no longer necessary. There is no equivalent obligation to new
section 20B in the existing SDA. It is designed to ensure that
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devices are not used for purposes other than those for which the
warrant was granted.
Subdivision 3--Retrieval Warrants
New section 20C allows an application to be made for a retrieval
warrant. The application process is similar to an application for a
surveillance device warrant.
New section 20D allows an application for a retrieval warrant to
be made by telephone, facsimile, e-mail or other means of
communication if it is impracticable for the law enforcement
officer to apply in person.
New section 20E sets out the matters the Supreme Court judge or
the magistrate must take into account when determining an
application for a retrieval warrant.
New section 20F sets out what a retrieval warrant must specify.
Under the existing SDA, a retrieval warrant must specify--
· the period (not exceeding 90 days) during which the
warrant is in force;
· any conditions subject to which premises may be
entered under the warrant;
· the time within which the person to whom the warrant is
issued must report to the court.
In addition to these matters, a retrieval warrant will now have to
contain--
· a recital that the judge or magistrate is satisfied of the
matters in new section 20E;
· the name of the applicant;
· the date the warrant is issued;
· the kind of surveillance device authorised to be
retrieved;
· the premises or object from which the device is to be
retrieved;
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· the name of the law enforcement officer primarily
responsible for executing the warrant;
· the name and signature of the warrant issuer.
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New section 20G details what a retrieval warrant authorises.
Currently under the SDA, a retrieval warrant authorises--
· the retrieval of the device specified in the warrant and
any enhancement equipment; and
· the entry (by force if necessary) onto the premises
where the surveillance device is reasonably believed to
be, or other premises adjoining or providing access to
those premises, for the purpose of retrieving the device
and equipment.
In addition to these matters, a retrieval warrant will now also
authorise--
· breaking open any thing to retrieve the device;
· if the device is on or in an object, temporarily removing
the object to retrieve the device, and returning the
object;
· providing assistance or technical expertise to the officer
primarily responsible for executing the warrant;
· if the warrant is to retrieve a tracking device, activating
the device solely to find and retrieve it;
· doing anything reasonably necessary to conceal the fact
that anything has been done in relation to the retrieval of
the device.
New section 20H(1) provides for the revocation of a retrieval
warrant by a Supreme Court judge or a magistrate (depending on
who issued the warrant) before it expires. Under new section
20H(3) the chief officer of a law enforcement agency is obliged
to revoke a retrieval warrant when the grounds for the issue of
the warrant no longer exist.
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Clause 10 substitutes Division 3 in Part 4 of the SDA concerning
emergency authorisations.
New section 25 specifies that Division 3 concerning emergency
authorisations does not apply to the Department of Primary
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Industries or Department of Sustainability and Environment, or to
fisheries or wildlife officers. This is consistent with the existing
SDA.
New section 26 allows a senior officer of a law enforcement
agency to give an emergency authorisation for the use of a
surveillance device in limited circumstances where there is an
imminent threat of serious personal violence or substantial
property damage. For example, an emergency authorisation may
be given in a siege, enabling police to install surveillance devices
in the premises in order to obtain information about the site, the
location and status of hostages, and the number and identity of
perpetrators. The authorisation allows the applicant to do
anything that a surveillance device warrant would authorise them
to do. Emergency authorisations can be granted in these
circumstances under the existing SDA.
New section 27 allows a senior officer of an agency to give an
emergency authorisation for the use of a surveillance device in
serious and urgent circumstances where a serious drug offence
has been, is being, is about to be or is likely to be committed.
Emergency authorisations for serious drug offences are also
provided for in the existing SDA.
Authorisation under section 27 allows the law enforcement
officer to whom it is given to do all the things that may be
authorised by a surveillance device warrant, except that the
device cannot be installed or used outside Victoria. This
jurisdictional limit is because Victoria has departed from
the model law in providing for emergency authorisations to be
given in relation to serious drug offences. The limitation will
therefore ensure consistency with the model law and will be
relevant for the purposes of mutual recognition, because other
jurisdictions will recognise a Victorian emergency authorisation
in accordance with its terms (see Part 4A, which implements the
model mutual recognition provisions that other jurisdictions will
also enact).
New section 28 requires a senior officer to apply to a Supreme
Court judge within two business days for approval of the exercise
of powers under the emergency authorisation. This is different
from the existing requirement under the SDA, which is for a law
enforcement officer simply to report to the Supreme Court on the
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use of the surveillance device within 72 hours of the emergency
authorisation being given.
New section 29 sets out what the Supreme Court judge must take
into account when considering the application for approval of an
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emergency authorisation that was given under new section 26
or 27.
New section 30 sets out what the Supreme Court judge must be
satisfied of before approving the emergency use of powers. If the
judge does approve the application, he or she may issue a
surveillance device warrant for the continued use of the device.
If the judge does not approve the application, he or she can order
that the use of the device cease and authorise retrieval of the
device subject to any conditions. Whether the application is
approved or not, the judge has the discretion to make orders
about the information obtained from the use of the device under
the authorisation or any record of that information.
New section 30A clarifies that evidence obtained under an
emergency authorisation that is approved is not inadmissible in
any proceeding simply because it was obtained before the
approval. However, new sections 30E(5), 30F(2) and 30G(2)
ensure that information obtained or relating to emergency
authorisations that are not approved cannot be used,
communicated or published in the usual way--for example to
investigate offences or be used in proceedings.
Clause 11 inserts a new Part 4A into the SDA concerning the recognition
of corresponding warrants and authorisations.
Currently, the use of surveillance devices by State and Territory
law enforcement agencies is regulated by a patchwork of
divergent legislation. There are inconsistencies between
jurisdictions and no ability to recognise surveillance device
warrants across borders. This means that warrants must be
obtained in every State or Territory that a criminal suspect enters,
leading to delays, loss of evidence and high administrative costs.
The adoption of the model law and mutual recognition of
warrants across borders is designed to overcome existing
difficulties. Once other States and Territories adopt the model
law, warrants and emergency authorisations that are issued in
Victoria will be recognised as valid in those jurisdictions by
virtue of provisions that mirror Part 4A of the SDA.
New section 30B ensures that a corresponding warrant can be
executed in Victoria as if it were issued under the SDA. See the
new Definitions for the meaning of "corresponding warrant".
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New section 30C ensures that a corresponding emergency
authorisation can authorise the use of a surveillance device in
Victoria as if it were given under the SDA. See the new
Definitions for the meaning of "corresponding emergency
authorisation". If the interstate judge decides not to approve the
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emergency authorisation under a corresponding law and orders
that the use of the device cease, the recognition of the emergency
authorisation in Victoria will also cease.
Clause 12 amends the heading of Part 5 of the SDA to "Compliance and
Monitoring" for consistency with the model law.
Clause 13 inserts new Divisions 1, 2 and 3 into Part 5 of the SDA.
Division 1--Restrictions on Use, Communication and Publication
of Information
New section 30D defines "protected information". It includes not
only information obtained from surveillance devices under
warrants and emergency authorisations, but also information that
relates to the application process behind warrants and emergency
authorisations.
New section 30E(1) and (2) will create two new offences.
The first offence prohibits a person from using, communicating
or publishing protected information. For a natural person, the
maximum penalty for this offence is 2 years imprisonment or a
fine of $24 000 or both. For a body corporate, the maximum
penalty is a fine of $120 000. The second offence is an indictable
offence. It will be committed in circumstances where protected
information is used, communicated or disclosed with the
intention or knowledge that it will endanger a person's health or
safety or prejudice the effective conduct of an investigation.
For a natural person, the maximum penalty for this offence is
10 years imprisonment or a fine of $120 000 or both. For a body
corporate, the maximum penalty is a fine of $600 000.
The new offences in section 30E will operate alongside Part 3
of the SDA, which generally prohibits the communication and
publication of records or reports of private conversations or
activities obtained by using surveillance devices. The
relationship between these provisions is that the general
prohibition in Part 3 will not apply to a communication or
publication of protected information (see clause 8 of the Bill
which amends sections 11(2) and 12(2) in Part 3 of the SDA).
Accordingly, new section 30E is intended to cover the field when
it comes to communicating and publishing protected information.
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Sub-section (4) sets out the circumstances when the new
prohibition in section 30E(1) and (2) does not apply, for example,
if the protected information has already been disclosed in
proceedings in open court or has entered the public domain.
Another circumstance is where the protected information relates,
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or appears to relate, to activities prejudicial to security within the
meaning of the Australian Security Intelligence Organisation Act
1979 (Cth). In those circumstances, the protected information
may be communicated to the Director-General of Security of
ASIO and used and communicated by ASIO officers in the
performance of their functions. This is consistent with the
Telecommunications (Interception) Act 1979 (Cth). It also
reflects the aims of the Leaders' Summit on Terrorism and Multi-
jurisdictional Crime in April 2002, of developing effective means
of sharing intelligence between law enforcement and intelligence
agencies.
Sub-section (5) ensures that protected information obtained from,
or relating to, emergency authorisations that are not approved by
a Supreme Court judge, cannot be communicated to the Director-
General of Security of ASIO or used and communicated by ASIO
officers in the performance of their functions.
New sections 30F and 30G provide that protected information
may be used, communicated or published for certain permitted
purposes. These purposes are partly based on the
Telecommunications (Interception) Act 1979 (Cth). New section
30F relates to local protected information, which is defined in
30F(4). New section 30G relates to corresponding protected
information, which is defined in 30G(4).
Local protected information can be used, communicated or
published for the following purpose--
· investigating an offence;
· deciding whether or not to bring a relevant proceeding
(see the new Definitions for the list of relevant
proceedings);
· a relevant proceeding;
· investigating the conduct of, or complaints against,
public officers either locally or in participating
jurisdictions (see the new Definitions for the meaning of
"public officer" in Victoria). This provision would
enable local protected information to be used, for
example, in an investigation against a law enforcement
officer in Victoria or in a participating jurisdiction;
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· making a decision about a public officer's appointment,
re-appointment, term of appointment, termination or
retirement;
· record keeping and reporting obligations under the
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SDA;
· inspections by the Victorian or Commonwealth
Ombudsman under the SDA;
· privacy investigations in Victoria, or under the privacy
laws of a participating jurisdiction or the
Commonwealth.
Corresponding protected information can be used, communicated
or published for the following purpose--
· investigating a relevant offence locally or in a
participating jurisdiction (see the new Definitions for
the meaning of "relevant offence");
· deciding whether or not to bring a relevant proceeding
in respect of a relevant offence locally or in a
participating jurisdiction;
· a relevant proceeding in respect of a relevant offence
either locally or in a participating jurisdiction (see the
new Definitions for the list of relevant proceedings, but
note that corresponding protected information can only
be used in those proceedings if the offence in question
meets the threshold set out in the definition of "relevant
offence");
· investigating the conduct of, or complaints against, a
public officer either locally or in a participating
jurisdiction;
· making a decision about a public officer's appointment,
re-appointment, term of appointment, termination or
retirement;
· equivalent record keeping and reporting obligations
under a corresponding law;
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· equivalent inspections by an interstate Ombudsman or
the Commonwealth Ombudsman under a corresponding
law;
· privacy investigations in Victoria, or under the privacy
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laws of a participating jurisdiction or the
Commonwealth.
New sections 30F(2) and 30G(2) ensure that protected
information obtained from, or relating to emergency
authorisations that are not approved by a Supreme Court judge
cannot be used, communicated or published in the usual way--
that is, to investigate offences, decide whether or not to bring
relevant proceedings, or for relevant proceedings.
New section 30H obliges the chief officer of a law enforcement
agency to ensure the secure storage and eventual destruction of
records and reports obtained from the use of surveillance devices
under warrants and emergency authorisations. The time frame
for destroying records and reports is when they are no longer
likely to be required for one of the purposes set out in new
section 30E(4), 30F(1) or 30G(1). This section is based on a
similar obligation in the existing SDA.
New section 30I enables a person (usually a law enforcement
officer) to object to the disclosure of surveillance device
technology or the methods of installing, using or retrieving
surveillance devices, in any proceeding. The person presiding
over the proceeding may order that the information be withheld.
In deciding whether or not to make the order, the person must
take into account whether the disclosure of the information is
necessary for the fair trial of the defendant or is in the public
interest. This new statutory protection is designed to re-state the
common law test of public interest immunity in relation to
sensitive operational information about surveillance devices.
Where such information is disclosed in the proceeding, sub-
section (5) enables the person presiding to make orders
prohibiting or restricting its publication.
New section 30J prohibits a person from searching for protected
information which is in the custody of the court, unless the court
otherwise orders in the interests of justice. "Protected
information" is defined in new section 30D. There is no
equivalent provision to section 30J in the existing SDA.
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Division 2--Reporting and Record-keeping
New section 30K requires the law enforcement officer to whom a
warrant is issued or who is primarily responsible for executing a
warrant, to report to the judge or magistrate who issued the
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warrant on the use of the surveillance device. Compared with the
existing requirement to report to the court under the SDA, the
following additional information must be provided--
· the name of each person involved in executing the
warrant;
· the kind of surveillance device used;
· details of the benefit to the investigation of the use of
the device;
· details of compliance with any conditions in the
warrant;
· if the warrant was extended or varied, the number of
extensions or variations and the reasons for them;
· whether the chief officer has revoked the warrant under
section 20A(2); and
· in the case of a retrieval warrant--
· details of anything opened and any object
removed or replaced under the warrant;
· if the device was not retrieved, the reasons why;
· details of compliance with any conditions in the
warrant;
· whether the chief officer has revoked the warrant
under section 20H(3).
New section 30L provides that the chief officer of a law
enforcement agency must report annually to the Minister
administering the SDA. Compared to the existing annual
reporting requirements under the SDA, the following additional
information must be provided--
· the number of remote applications during that year;
· the number of applications for warrants and emergency
authorisations that were refused during that year and the
reasons for refusal;
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· the number of applications for extensions of warrants
during that year and the number granted or refused and
the reasons why they were granted or refused;
· the number of arrests made that year on the basis
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(wholly or partly) of information obtained from the use
of a surveillance device under a warrant or emergency
authorisation;
· the number of prosecutions that were commenced
during that year in which information obtained by the
use of a surveillance device under a warrant or
emergency authorisation was given in evidence and the
number of those prosecutions in which a person was
found guilty.
The Bill requires the Minister to table the chief officer's report in
Parliament within 15 sitting days of receiving the report.
New section 30M obliges the chief officer to ensure that certain
documents connected with warrants and emergency
authorisations are kept. This will provide a documentary trail for
the Victorian or Commonwealth Ombudsman to measure the
relevant law enforcement agency's compliance with the Act (see
new sections 30P and 30Q). The chief officer also has an
obligation to destroy surveillance devices records and reports
under new section 30H(1)(b). This obligation operates when the
records and reports are not likely to be required for one of the
purposes set out in new section 30E(4), 30F(1) or 30G(1).
Those purposes include the record-keeping and reporting
obligations under Division 2 of Part 5, as well as the relevant
Ombudsman's inspections under new section 30P.
New section 30N obliges the chief officer to ensure that certain
records are kept. These are records that will form the basis of the
annual report that is submitted by the chief officer to the Minister
(see new section 30L). They will also assist the relevant
Ombudsman to measure the agency's compliance with certain
obligations concerning the use, communication and destruction
of information obtained from surveillance devices (see new
sections 30P and 30Q). There is no equivalent record-keeping
obligation in the current SDA.
New section 30O obliges the chief officer to ensure that a
register of warrants and emergency authorisations is kept.
This requirement is based on the record keeping obligations
in the Telecommunications (Interception) Act 1979 (Cth).
The register will provide an overview for the relevant
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Ombudsman on warrants and emergency authorisations that
have been issued when she or he conducts inspections and reports
on compliance with the Act (see new sections 30P and 30Q).
There is no equivalent obligation to keep a register of warrants
and emergency authorisations in the current SDA.
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Division 3--Inspections
New section 30P obliges the Victorian Ombudsman to inspect the
records of Victorian law enforcement agencies and the
Commonwealth Ombudsman to inspect the records of the
Australian Crime Commission, to determine the extent of each
agency's compliance with the Act (see the new Definitions for the
meaning of "relevant Ombudsman"). There is no equivalent
oversight role in the current SDA.
New section 30Q obliges both the Victorian and Commonwealth
Ombudsman to report to the Victorian Parliament on the results
of their inspection, and cause a copy of the report to be given to
the Attorney-General.
Clause 14 inserts a new Division heading into Part 5 of the SDA as a
consequence of the new Divisions inserted by clause 13.
Clause 15 substitutes section 31(b) of the SDA to include corresponding
warrants and corresponding emergency authorisations, amends
the body corporate penalty in section 31, and amends sections 33,
34, and 35 to substitute "Victoria Police" for "the police force".
These amendments are consequential on the substantive
amendments being made to the SDA by the Bill.
Clause 16 substitutes Part 6 in the SDA.
New section 36 enables a senior officer of a law enforcement
agency to issue evidentiary certificates.
The purpose of a certificate is to streamline legal proceedings by
avoiding the need to call numerous law enforcement officers and
technical expert witnesses to give evidence about the execution
of warrants and emergency authorisations, and the use of
information obtained from surveillance devices under warrants
and emergency authorisations. However, it will not prevent
experts and other witnesses from being called to give evidence in
person or be cross-examined when required. The current SDA
does not provide for evidentiary certificates. This section is
based on the Telecommunications (Interception) Act 1979 (Cth).
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New section 37 is a regulation-making power. Regulations may
be made to declare a corresponding law, prescribe offences for
the purposes of the definition of "relevant offence", prescribe
SES positions in the Australian Crime Commission to be senior
officers, and prescribe new kinds of surveillance devices.
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Clause 17 repeals spent transitional and amending provisions in the SDA.
Clause 18 inserts new transitional provisions into the SDA as a consequence
of the adoption of the model law.
Clause 19 is a consequential amendment to the Ombudsman Act 1973 to
ensure that the Victorian Ombudsman can perform the functions
conferred on that office under the SDA.
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