Bills Digest No. 24 2004-05
Bill (No. 2) 2004
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
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Surveillance Devices Bill
(No. 2) 2004
Introduced: 24 June
House: House of Representatives
To establish a statutory regime covering the use of surveillance
devices by law enforcement officers investigating certain
Commonwealth offences and State offences with a federal aspect .
The Bill also regulates the use of information obtained from
surveillance devices and enables surveillance devices to be used in
relation to certain child recovery orders.
The Surveillance Devices Bill (No. 2) 2004 (the No. 2 Bill )
replaces the Surveillance Devices Bill (No. 1) 2004 (the No. 1 Bill
). With the exception of some amendments, the No. 2 Bill replicates
the No. 1 Bill.
The No. 1 Bill was introduced into the House of Representatives
on 24 March 2004 and passed that House on 1 April 2004. It was
introduced into the Senate on 11 May 2004 and referred to the
Senate Legal and Constitutional Legislation Committee for inquiry
The Committee reported on the Bill on 27 May 2004. Its report
contained seven recommendations. In brief, these related to:
the time in which an eligible judge(1) or nominated
member of the Administrative Appeals Tribunal (AAT)(2)
must give approval for an emergency warrant issued by an
appropriate authorising officer . The No. 1 Bill provided that
judicial or AAT authority must be obtained within two business
days. This would allow an emergency warrant to remain unapproved
for up to 4 days, if a warrant is issued late on a Friday. The
Committee recommended that the period of two business days be
replaced by a period of 48 hours ( recommendation 1
oversight by the Ombudsman. The Committee recommended that the
Ombudsman be required to review records of the use of optical
surveillance devices, along with warrant records ( recommendation 2
- warrant shopping. Some concerns were expressed in evidence to
the Committee that the No. 1 Bill would allow enforcement agencies
to shop around for warrants under a variety of Commonwealth laws
including the Telecommunications (Interception) Act 1979,
the Crimes Act 1914 and the proposed surveillance devices
legislation. The Committee was concerned that ambiguities in the
statutory schemes have the potential to give rise to the use of
powers which would be proscribed under one statute but permitted
under another. (5) It recommended that the bill and the
[Telecommunications (Interception) Act 1979] be amended to
ensure that the circumstances in which similar kinds of
surveillance devices are authorised, are clearly described, and
that the limitations on their respective use are also clear. (
recommendation 3 )(6)
remedies for breach. The Committee recommended that the
legislation include civil remedies for people who are harmed by the
unlawful use of surveillance devices ( recommendation 4
retention and destruction of material derived from the use of
surveillance devices. The Committee recommended that the
legislation include a time limit of 5 years for the retention of
material obtained from the use of surveillance
devices.(8) It also recommended that the destruction of
material provisions in the Bill be brought into line with the
statutory regime for the destruction of material obtained from
telecommunications interception ( recommendations 5 & 6
passage of the legislation. The Committee recommended that the
Bill be passed, subject to the recommendations it had made (
recommendation 7 ).(10)
Further information about the No. 1 Bill can be found in
Bills Digest No. 147, 2003-04.
The No. 2 Bill was introduced into the House of Representatives
on 24 June 2004 in the hope that the Bill would pass both Houses
before the Winter Recess. The Bill was passed in the House of
Representatives on the same day but not introduced into the Senate
until 3 August 2004 (ie after the Winter Recess).
An outline of differences between the No. 1 Bill and the No. 2
Bill are contained in the Attorney-General s Second Reading
Some of the differences between the No. 1 and No. 2 Bills are
The No. 1 Bill defines law enforcement agency and law
enforcement officer to mean the Commonwealth, State and Territory
police and the Australian Crime Commission (clause
The No. 2 Bill extends the definitions of law enforcement agency
and law enforcement officer to include the New South Wales Crime
Commission, the Independent Commission Against Corruption, the NSW
Police Integrity Commission, the Queensland Crime and Misconduct
Commission, and the Western Australian Corruption and Crime
Commission (clause 6).
The effect of the amendments will be that officers of these
agencies will be able to obtain surveillance device warrants for
the investigation of certain Commonwealth offences(12)
and State offences that have a federal aspect. They will also be
able to obtain retrieval warrants(13) and emergency
authorisations;(14) and use certain surveillance devices
including tracking devices without obtaining a
warrant.(15) They will also fall within the record
keeping and reporting requirements of the legislation.
In general terms, the proposed legislation requires law
enforcement officers who want to use a surveillance device to first
obtain a warrant from an eligible judge or nominated AAT member.
However, there are a number of exceptions to this general rule. One
exception is where the officer obtains an emergency authorisation
from an appropriate authorising officer (ie certain senior officers
of law enforcement agencies). However, where an emergency
authorisation is obtained, subsequent approval by an eligible judge
or nominated AAT member is required.
The time in which an emergency authorisation must be brought
before a judge or AAT member for approval is reduced from two
business days (in the No. 1 Bill) to 48 hours (in the No. 2 Bill)
see new subclause 33(1) of the No. 2 Bill. This
change implements recommendation 3 of the Senate Legal and
Constitutional Legislation Committee.
The proposed legislation imposes record keeping and reporting
requirements on the law enforcement agencies who obtain
surveillance device warrants and authorisations.
The No. 1 Bill required agencies to destroy records containing
information obtained by the use of surveillance devices if those
records were no longer needed for instance, for court proceedings
or criminal investigations. However, no maximum time limits were
specified for the retention of such material.
The No. 2 Bill requires law enforcement and other agencies to
destroy these records and reports within 5 years unless the chief
officer of the agency is satisfied that relevant criminal or civil
proceedings have been commenced or are likely to commence. If the
material is retained it must be destroyed within a further 5 years,
unless the chief officer is satisfied about its use in criminal or
civil proceedings (and so on) see new paragraphs 46(1)(b)
and 46(2)(b). These amendments implement recommendation 5
of the Senate Legal and Constitutional Legislation Committee.
Information obtained from the use of surveillance devices is
called protected information. (16) The No. 1 Bill
contained criminal penalties for illegal use of protected
information (see subclauses 45(1) and (2) of the
No. 1 Bill; also subclauses 45(1) and (2) of the
No. 2 Bill). For instance, it is an offence to intentionally use,
record, communicate or publish protected information if its use is
not permitted and the person is reckless about that circumstance
The Senate Legal and Constitutional Legislation Committee
recommended that the legislation also provide civil remedies for
people who are harmed by the unlawful use of protected information.
Clause 64 of the No. 2 Bill provides that if a
person suffers loss or injury as a result of the AFP or the ACC
using a surveillance device where the use of the device is
prohibited by State or Territory law and is not in accordance with
the Surveillance Devices Act, the Commonwealth is liable to pay
compensation to the person. This amendment responds to
recommendation 4 of the Senate Legal and Constitutional Legislation
Queensland Public Interest
Clause 45 (in both the No. 1 and No. 2 Bills)
contains exceptions to the general prohibitions on the use of
protected information . For instance, protected information can be
used or admitted into evidence if necessary to investigate a
relevant offence , to investigate complaints against public
officers or for the purposes of inspections by the Ombudsman.
Under Queensland law, a Public Interest Monitor monitors police
compliance with the statutory requirements for surveillance device
warrants issued under Queensland law and appears at warrant
hearings to test the validity of the application.
New paragraph 45(5)(h), which is inserted by
the No. 2 Bill, will allow the Queensland Public Interest Monitor
to access protected information (in relation to the performance of
his/her functions under either the Crime and Misconduct Act
2001 (Qld) or the Police Powers and Responsibilities Act
Both the No. 1 Bill and the No. 2 Bill contain provisions
allowing federal, State and Territory law enforcement officers to
use surveillance devices without a warrant if they are acting in
the course of their duties and are a party to the
conversation being monitored (clause 38 in both
Bills). An example would be where a law enforcement officer is
Subclauses 38(4) and 38(5) in the No. 2 Bill
will also enable anyone assisting a federal, State or Territory law
enforcement officer to use a surveillance device without a warrant
if they are a party to the conversation. The Second Reading Speech
explains that these provisions will enable informants to use
surveillance devices in these circumstances.(18)
Under both the No. 1 and No. 2 Bills, surveillance device
warrants can be obtained where a recovery order is in force for a
child and a law enforcement officer suspects on reasonable grounds
that the use of a surveillance device will assist in the location
and safe recovery of that child.
The No. 1 Bill is limited to recovery orders issued under
section 67U of the Family Law Act 1975 (clause
6). The No. 2 Bill extends the definition of recovery
orders to include court orders made under family law regulations
which relate to international child abduction matters
Both Bills enable law enforcement officers to use surveillance
devices without first obtaining a warrant in certain cases for
instance, if they have an emergency authorisation. These
authorisations can be issued by senior officers in law enforcement
agencies. They must later be approved by an eligible judge or
nominated AAT member.
The circumstances in which emergency authorisations may be
obtained are set out in clauses 28-30 of both
Bills. They include urgent situations where there is a risk that
evidence of specified Commonwealth offences will be lost. The No. 2
Bill adds child sex tourism offences to the list of specified
Commonwealth offences [subparagraph 30(1)(a)(iii)]
and so allows emergency authorisations to be granted when there is
a risk that evidence of a child sex tourism offence will be lost,
the use of a surveillance device is urgently required to prevent
the loss of that evidence and it is not practicable to obtain a
surveillance device warrant.
A tracking device is an electronic device capable of detecting
or monitoring a person or object. It emits a radio signal that
allows the movement of vehicles or objects to be monitored.
Under the proposed legislation, the use of tracking devices by
law enforcement officers does not need to be authorised by a
warrant issued by an eligible judge or nominated AAT member.
Instead, the No. 1 and No. 2 Bills enable a law enforcement officer
to use a tracking device in certain circumstances with the written
permission of an appropriate authorising officer .(19)
The device may also be retrieved without a warrant if written
authorisation is obtained.
The No. 2 Bill amends the tracking device regime. For instance,
it ensures that a tracking device authorisation cannot remain in
force for more than 90 days [subclause 39(7)].
This places a limitation on the duration of tracking device
authorisations that mirrors the surveillance device warrant period.
The amendments also clarify that a tracking device authorisation
authorises the installation, use and maintenance of a tracking
device on relevant premises [see the reference to paragraph
18(2)(c)(i) in subclause 39(10) of the No. 2
The proposed legislation enables the Commonwealth Ombudsman (or
his/her inspecting officers) to inspect the records of law
enforcement agencies in order to determine whether the agencies are
complying with their statutory record keeping obligations. For
these purposes, the Ombudsman must be given full and free access to
agency records and may require relevant information to be provided.
The Ombudsman can also exchange information with State and
Territory authorities that have similar functions to the Ombudsman.
The Ombudsman must report to the Minister on the results of the
inspections. These reports must be tabled in Parliament.
The No. 2 Bill adds to the inspection powers of the Ombudsman.
The Bill already provides that Ombudsman can inspect the records of
the Australian Crime Commission (ACC) to determine whether the ACC
has complied with its obligations under the Bill. As well as being
given functions and powers under Commonwealth laws, State and
Territory laws also confer powers and functions on the ACC. The No.
2 Bill thus provides that the Ombudsman can inspect ACC records to
determine whether the ACC has complied with its statutory
obligations under State or Territory surveillance device laws
(where ACC officers have used those laws) subclause
The No. 1 Bill enables the Ombudsman to delegate almost all or
any of his powers under the proposed law to State/Territory
officials holding an equivalent office to the Ombudsman
The No. 2 Bill changes the wording of clause 59
so that the delegation to State/Territory officials will be to
officials having similar oversight functions to the Ombudsman . The
Explanatory Memorandum notes that this would include:
the Parliamentary Inspector of the Corruption and
Crime Commission under the Corruption and Crime Commission Act
2003 (WA), the Inspector of the Police Integrity Commission
under the Police Integrity Commission Act 1996 (NSW), the
Public Interest Monitor (appointed under either the Police
Powers and Responsibilities Act 2000 (Qld) or the Crime
and Misconduct Act 2001 (Qld) or both), other comparable
anti-corruption bodies as well as State and Territory Privacy
Readers of this Digest are referred to the Concluding Comments
in the Bills Digest for the No. 1 Bill (Bills Digest No. 147,
For constitutional reasons, an eligible judge must first consent
to being declared an eligible Judge and the power to issue warrants
is conferred on the judge in his or her personal capacity
AAT members who can issue warrants are Deputy Presidents,
full-time senior members, part-time senior members and ordinary
members. The last two classes of AAT member must be lawyers of at
least 5 years standing (clause 13).
Senate Legal and Constitutional Committee,
Provisions of the Surveillance Devices Bill 2004, May
2004, p. 21.
Ibid, p. 23.
Ibid, p. 27.
Ibid, p. 29.
Ibid, p. 30.
Attorney-General, House of Representatives, Hansard, 24
June 2004, pp. 31573-4.
Applicable Commonwealth offences are called relevant offences
and are defined in clause 6.
Part 2, Division 3.
See Part 3.
See Part 4.
Protected information also includes information relating to an
application for a warrant or the existence of a warrant, emergency
authorisation or tracking device authorisation; and information
likely to identify a person or premises specified in a warrant,
emergency authorisation or tracking device authorisation
Standing Committee of Attorneys-General and Australasian Police
Ministers Council Joint Working Group on National Investigation
Powers, Leaders Summit on Terrorism and Multijurisdictional
Crime. Cross-Border Investigative Powers for Law Enforcement,
Discussion Paper, February 2003, p. 245.
Attorney-General, House of Representatives, Hansard, 24
June 2004, p. 315734.
However, an appropriate authorising officer cannot authorise the
use of a retrieval warrant if it would involve entry onto premises
without permission or interference with the interior of a motor
vehicle without permission.
Explanatory Memorandum, para. 293.
9 August 2004
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